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What problems would occur if applicable association laws were Criminal (vs. civil)?

Started by TimB4 • 14 replies • 1383 views

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TimB4 (Tennessee)
Posts: 21,061
Posted:
Per a recent article in an Ohio paper, an Ohio Legislator has introduced a bill, OH House Bill 371, to hold Board members criminally responsible for what is being called paperwork violations (posting of meetings, failure to keep certain records, etc.). If adopted, Ohio condominium Directors could face third degree misdemeanor charges which can result in up to 60 days in jail and up to $500 in fines.

Many who have come to this site have advocated for such penalties. Therefore, lets take a real look at the pros and cons if this were to happen.

My questions are:

1) Have served or are you currently serving on your Board?
2) Would you serve on your Board if such penalties existed (and reasons for your answer)?
3) Do you believe others would be willing to serve on your board if such penalties existed?
4) What good do you think such a law would bring to your Association?
5) What problems do you thing such a law would bring to your Association?
6) If you had input, what changes (if any) would you make to OH's bill?
7) Would you support such a bill in your State?
TimB4 (Tennessee)
Posts: 21,061
Posted:
Oops, wrong link provided.

Here is the correct link to the correct OH House Bill 371 (wrong legislative session, sorry about that).

TimB4 (Tennessee)
Posts: 21,061
Posted:
My posting, I'll guess I'll go first:

1) Have served or are you currently serving on your Board?

Yes

2) Would you serve on your Board if such penalties existed (and reasons for your answer)?

Probably not.

Mistakes happen and, unfortunately, some won't believe a mistake to be a mistake. Even though I am currently responsible for posting future meeting dates on the Associations website, last minute changes for various reasons do not always get posted. I'm simply not willing to place my or my families well being by looking at potential jail time for doing a volunteer job that all ready takes more time then it should.

3) Do you believe others would be willing to serve on your board if such penalties existed?

Probably not. Sure there will be some, however, membership apathy is already so high that we typically cannot seat a full board of 5 (3 is the minimum we require). I wouldn't expect the apathy to change regardless if such a law was adopted or not. However, I would expect those who are currently willing to volunteer to reconsider that decision (just like I would).

Unfortunately, when people won't volunteer you are stuck with those who are willing to volunteer. It won't matter if they are good or bad at the job. They will be the one's doing it because nobody else will.

4) What good do you think such a law would bring to your Association?

It may, I repeat may, have those who don't comply with the law, comply.

However, I also believe that there are better ways to deal with that issue internally and that the problems will outweigh the benefits.

5) What problems do you thing such a law would bring to your Association?

First and foremost, the decreases in the number of volunteers willing to serve. Perhaps higher assessments in order to provide some incentive of monetary gain in order to have volunteers step forward. Worst case, receivership.

6) If you had input, what changes (if any) would you make to OH's bill?

Drop the criminal penalties on individual Board members. Instead, institute monetary penalties on the Association for failure to comply with the law. Then let the members deal with the reason the monetary penalties occurred. Typically, even apathetic memberships will act when it affects their own wallet.

As for Sec. 5311.08 (4)(b), it sounds like the Bill is authorizing actions without a meeting with just a simple majority vote providing it's recorded on the record. In my opinion, this is a very very dangerous thing to allow to happen.

I haven't read the full bill. These comments are from a quick first glance.

7) Would you support such a bill in your State?

VA has some of the provisions that this bill is proposing. As I said in a previous post, I like the way VA laws currently are and would not support major changes to them.

JonD1
Posts: 2,350
Posted:


1) Have served or are you currently serving on your Board?

Yes

2) Would you serve on your Board if such penalties existed (and reasons for your answer)?

Probably not.

This issue for some serves as a cure for all that is wrong in HOAs in their views. IMO it is not.
For many reasons. If you employee an MC and they fail in the required course of action the Board members than face criminal penalties? Just how might that affect the contracts between Boards and MCs?

Perhaps in other areas there is lots of open jail space and the courts are struggling to find work not so here. Do you think a judge will jail an HOA Board member rather than a more serious offender?

How about the DAs just where would enforcement of HOA meeting violations fall on the list of their priorities? Last I checked their plates are already quite full.

3) Do you believe others would be willing to serve on your board if such penalties existed?

You just added another reason not to do so.

4) What good do you think such a law would bring to your Association?

None

5) What problems do you thing such a law would bring to your Association?[/

You would then have Boards more focused on compliance with the law versus performance of their duties that benefit the property.

6) If you had input, what changes (if any) would you make to OH's bill?

Stop looking for government to address all that you see wrong in the world. In many cases once politicians get involved the desired outcome is never the finished product.

7) Would you support such a bill in your State?[/

No

SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By TimB4 on 02/17/2014 6:26 AM
Per a recent article in an Ohio paper, an Ohio Legislator has introduced a bill, OH House Bill 371, to hold Board members criminally responsible for what is being called paperwork violations (posting of meetings, failure to keep certain records, etc.). If adopted, Ohio condominium Directors could face third degree misdemeanor charges which can result in up to 60 days in jail and up to $500 in fines.

Many who have come to this site have advocated for such penalties. Therefore, lets take a real look at the pros and cons if this were to happen.

My questions are:

1) Have served or are you currently serving on your Board?
2) Would you serve on your Board if such penalties existed (and reasons for your answer)?
3) Do you believe others would be willing to serve on your board if such penalties existed?
4) What good do you think such a law would bring to your Association?
5) What problems do you thing such a law would bring to your Association?
6) If you had input, what changes (if any) would you make to OH's bill?
7) Would you support such a bill in your State?

Here's one person's response:

1. I stepped down from my board last month after 10 years of service (slavery? - sometimes it was hard to tell!)

2. I would probably still serve because keeping a paper trail is something that should be done to ensure a well run Association and if one doesn't want to go to jail, one should obey the law.

3. No. As it happens, most of our homeowners don't serve or volunteer for anything already - this would be yet another excuse

4. I think this law is utterly useless - I'd rather see my county prosecutors deal with REAL crimes, such as arson, rape, murder, burglary, etc. If a HOA board isn't keeping complete and accurate records, the homeowners should vote them out and put in people who will.

5. I don't think it would cause our Association any problems because we already keep proper records. Actually, we're better at it today, because in the early days of the Association, the records disappeared when it switched property managers (at least twice before I moved here). The owners on those early boards tossed their copies when they left the board and many have moved away so we don't have a lot of the early history.

As for other associations, I think this law might make people more inclined to make up records. If homeowners aren't paying attention to what's going on in the first place, it would be simple to give they anything - how would they know what's real and what's not? I also think it would discourage people from serving on the board, putting the association at risk for receivership, which jacks up everyone's costs.

6. If you're going to have criminal penalties, it should be for something substantial, such as the lack of records demonstrating embezzlement has occurred. A penalty for not posting a meeting is really minor, in my opinion.

I keep saying this and I'll continue to say this - if people don't like what their HOA board is doing, they need to hold them accountable and if things, don't change, vote them out and put in people who will do the right thing. No, it's not easy and doesn't happen overnight, but rallying together one's neighbors is faster and far cheaper in the long run than duking it out in court.

That doesn't mean court action should be avoided at all costs or that some laws aren't necessary, but if your governing documents call for meetings to be posted, board members being elected at a certain time and in a certain manner, etc., I fail to see how boards consisting of 5, 7, 9 people can ignore them and then completely intimidate a community of 100+ residents.

This is your home and no one will ever care about it more than you - stop the whining, man up (or woman up), roll up your sleeves and stark working on making those changes.

If there are too many problems with homeowner associations today, it seems to me the real solution would be to change the law that mandate them. The city and counties will just have to adjust their budgets to care for more streets, sidewalks and other infrastructure and homeowners will have to learn to live with neighbors who park 8 cars on a postage stamp size lot or paint their houses bubblegum pink - because it's your house, dang it and you can do what you bloody well please with it. Taste and consideration for everyone is irrelevant.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JeanneK3 (Maryland)
Posts: 562
Posted:
I agree with all of Tim's responses.
Jeanne
BanksS
Posts: 403
Posted:
Even though I live in a state with very few HOA laws, I believe this one goes too far. For the same reasons already posted. I'm just seeking open meetings and open records at this point.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Tim,

Every year almost every state has a legislator who introduces a bill that will cure all the ills of condos and associations. Very few such bills ever see the light of day and even fewer become law. The bill you refer to will die in committee without ever reaching the floor for a vote. This bill is newsworthy because it is Uber-Whacko.

The immediate problem with the bill is that it will do nothing to help. Instead of adopting some sort of positive system of education and/or licensing, the state would shift messy civil matters to the already-overburdened local criminal justice system. The public does not want to see more people in jail; it wants to see problems solved. This bill solves no problems and creates more work for others who should not be involved.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
1) Have served or are you currently serving on your Board?
YES

2) Would you serve on your Board if such penalties existed (and reasons for your answer)?
YES. While I rally against politicians get involved, some of this (open meetings, financial reports, minutes, etc.) should be part of a well run, open BOD thus it does not scare me.

3) Do you believe others would be willing to serve on your board if such penalties existed?
Only those that have something to hide or try and control should be scared.

4) What good do you think such a law would bring to your Association?
To my association, nothing. We operate openly.

5) What problems do you thing such a law would bring to your Association?
Same as #4. No problems.

6) If you had input, what changes (if any) would you make to OH's bill?
Remove any jail time, and in the worst case add fining. I did not read the entire bill.

7) Would you support such a bill in your State?
No as I do not believe in politicians calling the shots. I could easily live with them if already in place.

I believe this bill is a feel good, respond to some constituents type bill and it will die in committee. Myself, I would work to kill it.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
Here's my issue with the whole thing... How does one now have a meeting quorum if they are all in jail? When does one get arrested exactly? If you don't open the doors at 8 PM for the meeting do you have a police officer there at 8:05 pm taking you away in handcuffs? The logistics of the whole thing is entirely off. Plus who's going to press the charges? It can't be the HOA can it? It still would have to be an individual filing the charges against the BOD member. NOT a good situation...

Quite frankly, this bill is like the loons running the loony bin type of proposal. However, I do hear they serve some good eggs in jail...
Former HOA President
JonD1
Posts: 2,350
Posted:
Quote:
Posted By MelissaP1 on 02/17/2014 9:05 AM
Here's my issue with the whole thing... How does one now have a meeting quorum if they are all in jail? When does one get arrested exactly? If you don't open the doors at 8 PM for the meeting do you have a police officer there at 8:05 pm taking you away in handcuffs? The logistics of the whole thing is entirely off. Plus who's going to press the charges? It can't be the HOA can it? It still would have to be an individual filing the charges against the BOD member. NOT a good situation...

Quite frankly, this bill is like the loons running the loony bin type of proposal. However, I do hear they serve some good eggs in jail...

And lets just add one missing consideraion so far. In the event some Board in OHIO fails to post the proper number of noices for the meeting or loses a copy of the minutes from back in 1999 and they are arrested and charged under this new law. Who then covers their defense costs? They as individuals or the HOA where they serve.

So everytime someone makes a request for records they deem was not accepted or responded to in a proper manner Board members face jail time.

And if the MC in some cases fails to do so, the Board members face jail time.

Sounds like your typical politician's hairbrained solution to a problem that will cause more problems in the end.

RichardP13 (California)
Posts: 1,767
Posted:
Quote:
Posted By TimB4 on 02/17/2014 6:26 AM
Per a recent article in an Ohio paper, an Ohio Legislator has introduced a bill, OH House Bill 371, to hold Board members criminally responsible for what is being called paperwork violations (posting of meetings, failure to keep certain records, etc.). If adopted, Ohio condominium Directors could face third degree misdemeanor charges which can result in up to 60 days in jail and up to $500 in fines.

Many who have come to this site have advocated for such penalties. Therefore, lets take a real look at the pros and cons if this were to happen.

My questions are:

1) Have served or are you currently serving on your Board?
2) Would you serve on your Board if such penalties existed (and reasons for your answer)?
3) Do you believe others would be willing to serve on your board if such penalties existed?
4) What good do you think such a law would bring to your Association?
5) What problems do you thing such a law would bring to your Association?
6) If you had input, what changes (if any) would you make to OH's bill?
7) Would you support such a bill in your State?

Finally justice in the world!
RichardP13 (California)
Posts: 1,767
Posted:
So seriously, if you read the article, the bill will never make it out of committee. But what the take away from the article is why the bill was introduced in the first place, transparency and the disclosure of information, or the lack thereof.

If you read the actual bill, its shows why legislators, well, should not be legislators. It has some great points and with a few modifications, like the penalties, could become a good bill. It would take me about an hour to get the proper language.

True story. In California, our HOA's are governed primarily by the Davis-Stirling Act, named after Gray Davis and Larry Stirling, both State Assembly Representatives, who had absolutely NO input into the law. It was written entirely by an attorney living in one of the largest HOA's in the US called Leisure World. Larry Stirling was told by the Speaker of the Assembly, Willie Brown, to introduce some legislation, any legislation. He went looking for a cause to create a bill and that is what he found. Since the bill had to go through the Housing Committee of which Gray Davis was chair, Gray wanted his name on the bill. So Larry says fine, we will call it the Stirling-Davis Act. Gray's eyebrows frowned and the bill was later passed as the Davis-Stirling Act.
FrankS10 (Kansas)
Posts: 276
Posted:
Agree this law will never make it out of committee, and would most likely never be enforced by DAs if it did. Remember, prosecutors have discretion.

But, like Richard I agree that there are some merits to crazy bills like this at least making it to committee and more importantly, finding their way into the news. Whatever it takes to keep the visibility up on the people who abuse their positions!

While some will post how ridiculous this bill is, some of the HOA living is just as ridiculous. They deserve each other, LOL!
KarenC15 (Florida)
Posts: 118
Posted:
Yes, I have served on the board and also been an officer and committee leader. I would serve if the penalties were criminal, as I also serve in a public capacity and penalties for misconduct can also be criminal. It does not worry me because I use those office for service only and do my best to follow the law and rules. In my own HOA, the board members refuse training and do things that are clearly against the statutes without even thinking twice (as it does cost a lot to challenge things legally). If they were accountable through law enforcement, it might at least get them into a training session to be certified to serve on the board.
Hatred is contagious, so one should work to avoid it.

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