HOA funds being spent on NON commen elements

you MUST MUST MUST pay your assessment(s) in full

period

then you read and understand ALL your governing documents

then you seek legal advice from a competent attorney versed in BOTH contract and R.E. law

that's all folks

Debbie,

Based on what you posted (the details may change my advice), I offer the following advice:


There may have been a verbal agreement. Although a verbal agreement isn't as strong as a written agreement, it is still considered a contract. Find out when this arrangement was first agreed upon and who agreed to it (membership vote, board of directors vote, etc.) and then request copies of minutes from the applicable meeting(s). This will provide you with more information.

You should also read all the governing documents (CC&Rs, Articles of Incorporation, Bylaws and resolutions) to see if there is any requirement or agreement to provide access to the pool.


NO

Assessments are typically established by the Board of Directors and the members are typically contractually obligated to pay those assessments.


Worst case: foreclose

next to the worst case: tie the issue up in a legal battle


You need to check with an attorney to verify if your doubt is valid or not.

What you can do is call a special meeting of the membership or petition to have the issue on the next scheduled general membership meeting and discuss the issue with a vote to discontinue the practice. Majority wins.

You could also volunteer to serve on your Assocations Board of Directors and, if elected or appointed, be part of the decision process. If the issue was a Board decision, you can raise your concerns there.

After you have done the research, you could ask to address the Board and bring these issues and concerns forward and ask that the Board seek a legal opinion on the validity of providing such a service (pool).


I never found the FL law.

However, even in the thread that referenced that FL law, the member (poster) never quit paying their assessment. They challenged the validity of the amount of the assessment, first to the Board and then through the courts. Per that poster, it was a four year fight.

Since we don't know if the property is a time share, vacation rental, condominium or HOA, I can't really reference the applicable TN statutes. However, I can provide a link to the statutes and you can do the research:

http://www.tn.gov/environment/permits/tcalink.shtml

That site will direct you to lexisnexis which is what TN uses to publish their laws on the internet.

Hope this helps,

Tim

PS. There is no mention of the pool in the deed except an "exclusion" of the pool and the land the pool is on - so it is formally excluded from the HOA common elements.

Florida: This is the reference I found... "Using Association funds for other than common expenses is a violation of section 718.115(1), Florida Statutes. Unless otherwise stated in the governing documents." (in my case it is not) so that is why I am on the hunt for the law. I use Lexis Nexis to search the law and have not found anything that specific in Tennessee. So I was reaching out to you all to help me think of anything.

Attorney is in the plans but the problem is everyone knows everyone in my town and I am afraid to approach an attorney because they will likely know the developer and declarant and the previous treasurer - very sticky situation. And in the last 12 months, there have been some suspicious fires set to properties connected with the developer that our board president is afraid our cabins will all burn to the ground. Had no idea there is a Tennessee Mafia.

How much is this pool fee? Is it even worth it..

I don't want to fixate on the cost because that is not the issue. I appreciate your response but you missed something in my post. the Pool is PRIVATELY owned - it is EXCLUDED from the CCRs. It was NEVER turned over to the owners - it's legally excluded, private property.

If I go to sell this investment - and say you bought it, would you sue me if I advertised that the pool is a common element??? Of course you would. The pool is NOT an amenity of the HOA. What if all of a sudden the owner of the pool, decided they just wanted to use it for family and not allow the HOA to trespass anymore? They have pool parties, and use it all the time. One day they can just lock us out...

It's not about cost. When I advertise my cabin for rent, I do not promote the pool. Say I have the summer all booked up, then the owner of the pool locks us out. Now what? people based their decision to rent a cabin with a pool, now we are talking big bucks in refunds and lost revenue. So, no monthly the cost is peanuts, the big picture is what scared the piss out of me.

All you'll do is force the HOA board to sign a simple agreement to lease the pool on behalf of the community's residential access. Your problem is solved. You recently purchased in this community and the amenities - even ones who don't use - played a role in your decision, if subconsciously. I wouldn't pick a fight over the small amount of money - and it will be small. Enjoy your property.

Fighting a battle this petty will ensure you'll not get speedy service when you really need your HOA to help you on a matter. I guarantee that.

Isn't it amazing what some people will resort to when someone questions a process, a procedure, or a fee? Then you become labeled as petty or a PIA as some on this site like to call you when you post an issue that they don't agree with.

Only you can decide how far you want to take this. Whatever you decide, be prepared for some ugliness because some people can't set aside their personal feelings and take an objective look at the situation. Then they do things to you that have nothing to do with the issue at hand to retaliate. I have experienced something similar. Good luck.

So, you have a personal vendetta against the pool owner and now, as a new board member, you want to end pool access for everyone rather than better legitimize the pool lease, which obviously has worked for the community since prior to arrival and family pool trespassing incident. I'm just saying to represent your greater community and help it operate more transparently, signing a written lease if the greater community enjoys the pool (even if you don't). The lease could clarify pool-guest access.

The pool owner is clearly in the wrong for harassing your Significant Other. Punishing your neighbors is not the correct response. There is a balance in using common sense and HOA rules and by-laws. It's not high treason to find sloppy agreements in laid-back neighborhoods yet the community is, by and large, served well. There are huge talent gaps on boards of directors. It's an odd arrangement but your motives are to "pay back" the pool owner at the expense of pool users who may not know the odd "handshake" agreement.

HOA Talk is becoming a collection of forum threads that detail American HOA dysfunction using short stories. That's regrettable because HOAs can be alright to deal with.

Debbie,

This issue is simple (if you have the support) to resolve. However, it may take you a few years to gather the support needed.

Bring the issue to a vote at the Board meeting when you draft your budget and set the annual assessment if the Association should continue to pay for pool memberships or if the Association will allow each member to make that decision on their own.

If there is support, the Board will vote to not pay for the memberships.
If the support isn't there, the Board practice will continue and you will know where you stand.

If the practice is to continue, insist on a contract (perhaps even drafting one yourself) so everyone is aware of the terms of the agreement.

Thank you for pointing out how easy it is to miss a sentence in someone's post. May I ask that you do the same? I'm only trying to help you.

If you bought it under the pretext that the pool was included, then you should be fighting the agents that sold it to you, not go after something that the majority of the HOA is quite happy with. Your neighbors spoke up to their feelings when they didn't show to support you.

CHOOSE YOUR BATTLE CORRECTLY. It is not the fault of the HOA. They have been happy with it, and if you have now found out the truth behind the pool "ammenity", then go after the people taht sold you the investment. If they decide to sell it and they say it's included, then it's on them and not your concern, nor your battle.

There are pools that are privately owned and operated and they sell "memberships" to help keep the cost down. But it sounds like you've gone on the attack and now it will doubly hard to find out anything until you've gone through the expense of hiring an attorney to force them to hand over any documents.

And just an FYI: Even if you find it is legal or not illegal, if the Owner of the pool decides to close it, you and everyone else is SOL. You can't do anything prevent that. NOTHING. That has happened many times since the housing collapse. You can't be immune to that just because of your unique situation, which is not so unique.