Board of Directors Violation of Bylaws

Started by WalterM3 • 46 replies • 6313 views

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WalterM3 (Georgia)
Posts: 442

Posted:

The Board at my HOA passed a ‘secret’ motion that violated an explicit provision of the Bylaws. The Bylaws state that from five to nine Board members may make up the composition of the Board. The sitting Board passed a Motion restricting the number of Board members to five. They did this just before the Annual Meeting. Four incumbents had time left to serve on the Board. They provided a ballot and told the residents at the Annual Meeting to vote only for one person, for a total of five. So the Board members have violated the Bylaws and consummated it with action.

The HOA Covenants have a section: “In the event of a violation or breach of any of the same [Bylaws or Covenants] …the aggrieved owner… shall have the right to proceed at law or in Equity to compel compliance therewith.”

I plan to sue the individual Board members who voted for the violating Motion.

What do you think my chances for recovery are?

Thanks,

Ed

JohnB26 (South Carolina)
Posts: 1,569

Posted:

about the same as Hell freezing tomorrow

WalterM3 (Georgia)
Posts: 442

Posted:

That is not very encouraging.

How then can the laws of Georgia help me ensure that the Board of Directors be compelled to fully comply with the Bylaws in future?

Ed

LarryB13 (Arizona)
Posts: 4,099

Posted:

Walter,

You need to apply for an injunction to compel the board to comply with its own bylaws. This is normally done in a court with an attorney.

Filing a lawsuit for monetary damages in a small claims court will get you nowhere unless you can prove that you suffered financial damages.

WalterM3 (Georgia)
Posts: 442

Posted:

Larry,

That is the best info I have heard yet. What is the force an injunction has? Thing is, the annual meeting was in March, and of course it will be March 2015 before it rolls around again and they would have to (per the injunction) agree to seat up to nine members, as the Bylaws explicitly state.

I don't want to wait for that. Could an injunction force the Board to hold a 'remedial' election? Can an injunction help me recoup my legal fees?

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

I have won a couple of cases in Small Claims Court, called here in GA the Magistrate's court. It can only make you whole for your monetary losses. I would want to file in Superior Court and seek money damages to encourage these Board members or others down the road to follow clearly written rules.

Thanks,

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

"An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment."

That is from wiki.

So it may be that the first step is to get an injunction against the HOA Board, but that doesn't address their past wrong in illegally restricting how many Board members must be seated.

Ed

CarolR11 (Colorado)
Posts: 2,563

Posted:

What if the Board had reduced the sir of the Board after an election? Would that have been OK, Walter?

Will you please cite the exact passage in your bylaws? And any sentences that relate to it? Is it possible that the board can select whether it is 5, 7, or 9?

What do you mean by "secret" motion? That the Board vote was done behind closed doors in executive session, for example?

A lot cheaper than court would be to rally other neighbors to join you and you all can go to a board meeting and politely express your dismay IF you know for sure the board acted improperly.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

The Bylaws state that from five to nine Board members may make up the composition of the Board.

They have 5 - what is your issue?

FredS7 (Arizona)
Posts: 927

Posted:

What JohnB26 said. There does not seem to be any actual violation.

> What do you think my chances for recovery are?

This is not the day you won the lottery. I am not a lawyer- but- if there WERE a violation- I believe the remedy would be to require the board to stop the offending act. Not to pony up money.

CarolR11 (Colorado)
Posts: 2,563

Posted:

My previous question basically is the same as JohnB's & Fred's. I only wrote odd numbers because usually it's better as a way to avoid tie votes.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By WalterM3 on 04/23/2014 12:37 PM

I plan to sue the individual Board members who voted for the violating Motion.

What do you think my chances for recovery are?

That is a legal question that needs to be addressed to your attorney.

Based only on what you provided, my layman's opinion is that you would not win. Since the Bylaws authorize a variable number of Directors, then what needs to be decided is who has the authority to decide the number of directors to be seated (the members via election or the Association). An argument could be made either way. Therefore, I suspect that it would be a 50/50 chance unless you could provide proof that there was malice and intent in limiting the numbers in order to deny the members their choice of Directors.

Take all your paperwork, including copies of the ballots, tally sheet and draft minutes of the annual meeting, to your attorney and ask them that question.

EllieD (Vermont)
Posts: 446

Posted:

WalterM,

What is the correct procedure according to your Documents for setting the size (number of Directors) of your Board?

Would you post the exact words from your Bylaws. And by chance, is there also a reference to Board size in your Declaration/CC&Rs.

You seem convinced that it was done incorrectly. I noticed in your first post that you use the word “may” when writing about the size - five to nine members.

Also would you explain what you mean by a ‘secret’ Board Motion. What transpired?

CarolR also asked you in her post – perhaps you missed the questions.

WalterM3 (Georgia)
Posts: 442

Posted:

Thank you all for your input.

Starting off:

Yes, the Board passed this '5 members only' Motion in an 'executive' or secret deliberation. It was recorded as 'Executive Minutes'. Another, different, set of Minutes for that month was posted to the HOA website. I have an e-mail where the HOA president says the Minutes containing the five member restriction was meant to be secret.

Someone asked (paraphrasing) "the question is who gets to decide whether the minimum 5 or the maximum 9 get seated."

My answer to that is simple. The HOA members decide that - by voting. If they want to seat 9, then 9 are seated. No seated Board by -its- own mere resolve can change that.

Here is a scenario and it is pertinent here. Four incumbents do not have to run this year. Time remains on their terms of office. But they know that 5 other residents are not happy with the decisions they have made and the course they have chosen. How to thwart that group of 5 residents at the annual meeting so they can't take control of the direction of the community?

Simple: Pass a motion that won't allow them to run at all. Only allow the residents to fill one position for the minimum 5. It doesn't matter who the fifth person is. The Gang of Four still controls the money and the power.

That can't be right. I think the answer is right in the Bylaws. Nine Board members must be seated if the people want them to be seated.

It won't let me attach a jpg image of the Bylaws.

The applicable sentence in the Bylaws reads: "The affairs of the association shall be governed by a Board of Directors consisting of not less than five (5) and no more than nine (9) members."

Ed

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Walter

I am not nor do I play a lawyer.

Most Covenants say something similar to ours which say no less then 3, no more then 7. Rarely do Covenants define a specific number nor how they are elected. Covenants usually leave such to the Bylaws. Our Bylaws say the BOD will decide how many members from 3 to 7.

I do agree with you that this should not be an Executive Session topic. It should have been discussed in an open meeting.

I believe your BOD may well have had the authority to select how man and any legal action on this issue by yourself would be foolish and costly. If you have the urge to do something, then work on getting like minded thinkers elected to the BOD.

WalterM3 (Georgia)
Posts: 442

Posted:

John,

Thanks for your input.

Apparently unless this goes into the legal system, 3 or 4 people can control the whole Board and process, and thumb their noses at all 440 home owners.

The owners at large are unwilling and/or afraid to go on the record or just hope that the whole thing will go away.

However, I have been hoping someone could talk off this particular ledge.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Walter

I do not know how new you are to association living but the owners do have control in who they elect. No different then Congress. We elect Congress but they make the motions, pass the bills, control the budget, and we do not get to vote on every single item. This how an association operates. It is not majority rule/vote on every single thing.

You can recall any member of the BOD and/or run against them. Legal action is considered the last resort.

Fellow goes to confession.
Confesses to the Priest that he beat the hell out of a Congressman.
Priest says I am here to forgive your sins. I am not here to discuss your good service to the community.

WalterM3 (Georgia)
Posts: 442

Posted:

Well, the fly in the buttermilk in our Bylaws is that a recall may only be initiated by any two board members who agree to do it.

Given the clique that now controls the Board, that is simply not in the cards.

I will add that I sent the 'secret' Motion to the HOA lawyer 3 weeks prior to the annual meeting where it was given effect. At that time only a fifth person (not a 6th, 7th, 8th or 9th person) was allowed to stand for election.

He never answered my e-mail. He may have colluded on their course of action that restricted the Board to five members.

I think they know their course of action was totally bogus. They are daring someone to take them to court.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

John,

Additionally, the four Board members who have in my opinion strangled any opposition to their actions all have two more years to run on their terms.

Action is needed now.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

Here is something I found online:

"Enforcement

Duty to Enforce. Associations can be held liable for their failure to enforce the CC&Rs. Owners may sue the association for damages and an injunction to compel the association to enforce its documents. (Posey v. Leavitt.)"

Read more: Duty to Enforce http://www.davis-stirling.com/tabid/1238/Default.aspx#ixzz2zoa8IxVN

So I really think I am on good ground here.

Ed

JoK2 (California)
Posts: 198

Posted:

>What do you think my chances for recovery are?<

What is it your trying to recover?
Money?
Rescind the motion to fill all nine seats?
What exactly is it that you want and how many other owners agree and will support you in court?

The answer seems pretty obvious to me.

WalterM3 (Georgia)
Posts: 442

Posted:

It doesn't matter how many other residents support me in court. I have standing.

What these arrogant and cocksure Board members need to consider is that every home owner in the community, all 440 of them, have standing to sue the individual Board members for violating the Bylaws.

Why do it?

Pour encourager les autres.

Ed

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Suing your HOA is suing yourself and your neighbors. Suing individual board members are protected by liability insurance. There are other options inside your documents than to sue. I would recommend looking into those. Do not ask me which ones. Post them once you read them.

Do you have anyone who was interested on being on the board that was denied? 9 is a hard # to reach for board members. We reduced ours down to 5 because could never get 9 people to show to a meeting never the less be on the board. There is no They or Them in a HOA... It is YOU and your neighbors...

Former HOA President

JoK2 (California)
Posts: 198

Posted:

What are you trying to recover Walter?

WalterM3 (Georgia)
Posts: 442

Posted:

I want to ensure that future Boards follow the plainly written rules in the Bylaws and Covenants.

The best way to do that is to put some kind of pressure on the Board members who broke the rules. That would be anything from an injunction to a money judgment. The main thing is to -prove- they broke the rules. They didn't really follow an -interpretation- of the Bylaws. They just broke them and went their merry way.

Ed

EllieD (Vermont)
Posts: 446

Posted:

WalterM,

1. Thank you for posting, the applicable sentence in your Bylaws: "The affairs of the association shall be governed by a Board of Directors consisting of not less than five (5) and no more than nine (9) members."

But I would expect that there would be several more sentences following. And those sentences could be VERY important. Would you be willing to post them?

You should be able to make the argument that it is just “common sense” that reducing the number of Directors should not shorten the term of any incumbent Directors.

2. Re your statement that you sent “the 'secret' Motion to the HOA lawyer 3 weeks prior to the annual meeting” and that “he never answered my e-mail".

There have been many discussions here, about OWNERS contacting the HOA Attorney.

In general, unless you know otherwise, the HOA Lawyer is to advise the Board (the Directors) only. And even then, typically only one (1) of the Directors is authorized to contact the HOA Lawyer with Board questions.

So that might be the reason why the Lawyer ignored, and did not answer, an email sent from you (an Owner who is not a Director).

3. As to the “secret” motion – As others have posted, I agree that even if your Bylaws give the Board the right to “set the number of Directors” – IMO it should never be done in executive session.

What do your documents state as to the topics that may be discussed in Executive Session?

4. You wrote 440 home owners. So is it correct to assume a community of 440 stand alone homes, and not a Condominium Association?

Also, you have not said – is your Association self managed or is there a managing agent,or Management company involved? And most important, is your Declarant completely out of the picture?

5. Re your post “in our Bylaws” …...”a recall may only be initiated by any two board members who agree to do.”

What else does that section say?

Might it also say “or upon written petition of twenty-five (25%) percent of the Owners of Member Lots.”, or similar? Probably referring to calling a “Special Meetings”?

WalterM3 (Georgia)
Posts: 442

Posted:

And yes, they only allowed 5 members because they wanted to block two specific individuals from Board membership. In this, I believe strictly speaking, they engaged in a conspiracy. Of course they could still control the votes on the Board.

An ability to operate in secret was their aim.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By EllieD on 04/25/2014 10:34 AM
WalterM,

1. Thank you for posting, the applicable sentence in your Bylaws: "The affairs of the association shall be governed by a Board of Directors consisting of not less than five (5) and no more than nine (9) members."

But I would expect that there would be several more sentences following. And those sentences could be VERY important. Would you be willing to post them?

You should be able to make the argument that it is just “common sense” that reducing the number of Directors should not shorten the term of any incumbent Directors.

2. Re your statement that you sent “the 'secret' Motion to the HOA lawyer 3 weeks prior to the annual meeting” and that “he never answered my e-mail".

There have been many discussions here, about OWNERS contacting the HOA Attorney.

In general, unless you know otherwise, the HOA Lawyer is to advise the Board (the Directors) only. And even then, typically only one (1) of the Directors is authorized to contact the HOA Lawyer with Board questions.

So that might be the reason why the Lawyer ignored, and did not answer, an email sent from you (an Owner who is not a Director).

3. As to the “secret” motion – As others have posted, I agree that even if your Bylaws give the Board the right to “set the number of Directors” – IMO it should never be done in executive session.

What do your documents state as to the topics that may be discussed in Executive Session?

4. You wrote 440 home owners. So is it correct to assume a community of 440 stand alone homes, and not a Condominium Association?

Also, you have not said – is your Association self managed or is there a managing agent,or Management company involved? And most important, is your Declarant completely out of the picture?

5. Re your post “in our Bylaws” …...”a recall may only be initiated by any two board members who agree to do.”

What else does that section say?

Might it also say “or upon written petition of twenty-five (25%) percent of the Owners of Member Lots.”, or similar? Probably referring to calling a “Special Meetings”?

Thanks for your note. This is a townhouse community.

Quoting the Bylaws: "The affairs of the association shall be governed by a Board of Directors consisting of not less than five (5) and no more than nine (9) members."

The next sentence is that section reads: “All Directors will be owners of lots or spouses of owners; provided however that no Owner and his or her spouse may serve on the Board at the same time.” There is some other boilerplate language about who can be a member of the Association and how you stop being a member. That's it.

When I sent the e-mail to the lawyer I was a Director on the Board. We had exchanged some e-mail on different subjects prior to that.

There is -nothing- in the Bylaws about secret deliberations in the Bylaws or Covenants. I asked a former HOA president and long term resident. She had never heard of any secret deliberations. The Bylaws (I just read it) say that all resolutions of the Board will be held in a Minute Book by the Secretary. That would suggest that 'secret' or non-published Motions/resolutions are not even allowed.

I stand corrected on the one thing: Two Directors can call a special meeting or it can be called with the written request of 25% of the owners.

Ed

CarolR11 (Colorado)
Posts: 2,563

Posted:

You wrote, Walter: "Two Directors can call a special meeting or it can be called with the written request of 25% of the owners." Gather support from your fellow homeowners and call a special meeting.

I, too, agree that reducing the number should not have been done in executive session (secret meeting). What do your state laws (if any) say about executive session?

JoK2 (California)
Posts: 198

Posted:

Ok, it sounds like they should suffer some consequence(s) for how they have gone about this, and all of us here are with you in the fact that you want to make sure it doesn't happen again.

If I apply what I have learned through the board not understanding the documents and going through a County HOA review board, the Bylaws have not been violated, in it's purest form. I'm not offering legal advice, and call me a Kook, however:

The bylaw as written state five to nine people.

The board approved a motion to keep it at five.

Regardless of why they may have stacked the deck, at the end of the day, there are five on the board. The bylaws say as few as five no more than nine. No violation.

Our docs say the same thing about how to call a special meeting, so I figured you would see the second part about needing 25%.

Canvas and get the support needed to do so, but before you do that, you should pony up the money to meet with a separate attorney to find out if the bylaws have been violated.

Good Luck!

WalterM3 (Georgia)
Posts: 442

Posted:

The Bylaws state that the HOA is subject to the Georgia Non-Profit Corporation Code.

The Code states in part:

"All corporations should keep minutes of all meetings of members and the board of directors, executed consents, and all committee actions, as part of the corporation’s permanent records. All corporations should also maintain appropriate accounting records, a record of the name and address of all members and any voting rights for each member."

I do have:

1) an e-mail from the HOA president saying that the "Executive Minutes" were not intended for publication.

2) a Word file of those 'Executive Minutes' that has as part of the file name the word "executive".

3) A second Word file with Minutes for that same meeting intended for publication on the HOA website. And yes, those minutes are on the website.

I searched on the GA Non-profit code website for "secret" and "secrecy". Neither of those words appear on the site.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

"I, too, agree that reducing the number should not have been done in executive session (secret meeting). What do your state laws (if any) say about executive session?"

As near as I can tell, as a non-profit that receives no money from the State, the State Sunshine Laws do not apply.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

"Regardless of why they may have stacked the deck, at the end of the day, there are five on the board. The bylaws say as few as five no more than nine. No violation."

If that were to stand, a clique of three people could dictate all the affairs for 440 units. At least with "up to nine" you require a larger clique of overreaching jerks to dictate to the many.

They can also arrange by such a motion to keep things secret - by not allowing even one person who doesn't agree with them to be on the Board.

Your interpretation (and I understand that it is not -yours-) means as I said before that if a few people simply want to block certain people from being on the board, they can preclude it by what this Board has done -- just pass a secret motion that says they can't run at all.

That proposition will get the scrutiny it deserves, in the court system.

Have ya'll ever seen this:

"The truth is that, for some people, being a board member is a very satisfying position with a number of rewards and perks. The types of people that are attracted to, and truly enjoy, these volunteer positions, too often, turn out to be the neighborhood authoritarians, the control freaks; every neighborhood has them. Abrasive and or adversarial personality traits are not uncommon. These people are the lynchpin of the HOA system; management companies and association attorneys depend upon their willingness to engage in conflicts with homeowners to generate a steady flow of income. And, backed up as they are by an institution that would make any third world totalitarian dictator emerald green with envy, they generally prove to be quite up to the task."

http://www.thehoaprimer.org/commonlies.htm

My HOA is suffering from a very virulent strain of that type person being in charge.

Ed

JoK2 (California)
Posts: 198

Posted:

I'm not sure it matters when, where and why they made the motion, so what if they did in an executive session or not. Don't waste your energy on that. Regardless of how they did it, they did it. Find out if is an actual violation first. Focus your energy on the right path. Call an attorney. It may only cost you $50 to find out.

Then you can decide if you want to:
A) take the entire HOA to court for them to suffer consequences, or
B) you get the support needed to throw them all off the board and fill with new people.

The other part about your wanting no future boards etc violating docs? Well, that is a pipe dream as we said back in the day. you can forget that. You have absolutely no power or control to ensure that from happening. Take that out of the equation now.

Are you certain you are a "non profit"? or are you, "not for profit". An HOA shouldn't expect to get money from a state regardless.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JoK2 on 04/25/2014 12:36 PM
I'm not sure it matters when, where and why they made the motion, so what if they did in an executive session or not. Don't waste your energy on that. Regardless of how they did it, they did it. Find out if is an actual violation first. Focus your energy on the right path. Call an attorney. It may only cost you $50 to find out.

Then you can decide if you want to:
A) take the entire HOA to court for them to suffer consequences, or
B) you get the support needed to throw them all off the board and fill with new people.

The other part about your wanting no future boards etc violating docs? Well, that is a pipe dream as we said back in the day. you can forget that. You have absolutely no power or control to ensure that from happening. Take that out of the equation now.

Are you certain you are a "non profit"? or are you, "not for profit". An HOA shouldn't expect to get money from a state regardless.

The Bylaws say that the association is subject to the Georgia Non-Profit Corporation code. I found a thing that said that the Sunshine Laws only apply to non-profits that get more than 1/3 of their funding from the state.

Of course there is no firm sanction on future Boards except they might recall what happened to this Board (if it happens).

Yes, I definitely plan to engage an attorney to look at what has been done. Maybe it is creepy and authoritarian for a clique to block out people they don't want to run, but not subject to any remedy outside what the HOA members think of it.

We'll see.

Ed

TimB4 (Tennessee)
Posts: 21,062

Posted:

Walter,

As Jo pointed out, the issue is not how it was done.
The issue is did the Board have the authority to limit the number of Directors based on the governing documents and applicable laws.

If they had the authority and simply failed to follow procedures, they could simply follow the correct procedures and achieve the same result. Therefore, arguing procedures may only invalidate that current vote. However, it won't correct the problem as they can always retake the vote using proper procedures.

However, by arguing authority and winning, it not only invalidates what they did but specifies that they can't do it at all.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Are you actually saying that there is nothing in your bylaws about executive sessions and what's permitted to be discussed & decided in them?

Are you actually saying that there's nothing in GA's corporation codes about executive sessions and what legally may be discussed & decided in them?

Are there no laws in your state pertaining to Common Interest Developments or HOAs, or any other version of such an entity?

I have never heard of a state where executive session minutes must be available for HOA members.

To me, if feels like you've been cherry-picking your quotations.

IMO, your board has the authority to reduce or keep the board at five. Therefore they have not violated your governing documents, and an enforcement action would fail.

But I'm not in the legal profession. I think you've received very sound advice here for quite a few. As others have suggested, either spend a few bucks to get an attorney's opinion and/or find others to join you to recall the board and replace it with your own candidates. I don't think the state of GA can help you with the Board of bullies.

PS. Our bylaws say that the board is 5. That may be increased by the board to 7. When we had a horrid board we did manage to get them to increase it to seven for exactly the reason that Walter wants. Now with an good MC and a lot of problems solved, esp. construction defect litigation, we'd like to go back to five. But our bylaws add, once increased seven, we only can reduce it to three. Crazy, yes? And our HOA attorney has interpreted that to mean we really may not reduce our board to five again.

WalterM3 (Georgia)
Posts: 442

Posted:

Carol,

I am still learning about what exactly is and is not required.

It wouldn't do me much good to cherry pick quotations if I want honest answers. Also, I can't say anything that would identify the community, as you know. So some things have to be said carefully. Legal documents are often written in a general sort of way so they can cover lots of situations. That is part of the genius of the U.S. Constitution. I have quoted the only thing in our Bylaws that speak specifically to this: The Board may consist of from 5 to 9 members.

In our HOA the requirement for 'executive' or secret action has always applied to anything that pertained to an individual resident enforcement action or issue. So there is certainly an executive aspect to it.

Let me assure you that keeping two sets of minutes for one monthly meeting is way outside the norm. They did that. I have copies. The usual size of our Board had been seven. And the reduction from five to seven was absolutely done to keep the residents from voting for two members that the sitting Board just didn't want to deal with.

Ed

WalterM3 (Georgia)
Posts: 442

Posted:

Thank you everyone for your input on this important issue.

I had kind of an epiphany over the weekend.

What really happened in my HOA is that the Board decided to interpose itself between candidates for the board for whom the residents at large might want to vote. The Board essentially said - "We won't let you vote for that person at all."

What I need to find now are some case law precedents for this issue. Some preliminary Google searches haven't been very helpful. Does anyone know of a good free or non-subscription search engine for court cases?

Ed

SoniaC (Georgia)
Posts: 4

Posted:

oh please tell me more about this injunction?
do I have to have an attorney to file it?
if I have proof based on the recorded minutes from our meetings that this board that is currently seated is seated illegally and they had went absolutely rogue! they are changing our Association's name? they have rewritten our bylaws? they have added to the architectural guidelines to a point that it contradicts our CC and R's?
I have filed a suit against a homeowner that is paid in full and have not broken any of our rules? this is not fiction this is a fact and it is true. please tell me about an injunction?

SoniaC (Georgia)
Posts: 4

Posted:

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By SoniaC on 10/17/2014 1:03 PM
oh please tell me more about this injunction?
do I have to have an attorney to file it?
if I have proof based on the recorded minutes from our meetings that this board that is currently seated is seated illegally and they had went absolutely rogue! they are changing our Association's name? they have rewritten our bylaws? they have added to the architectural guidelines to a point that it contradicts our CC and R's?
I have filed a suit against a homeowner that is paid in full and have not broken any of our rules? this is not fiction this is a fact and it is true. please tell me about an injunction?

Injunctions are not easy to get. Courts do not issue injunctions often.
If you tell the court that the board is "seated illegally," you will not get an injunction.
If you tell the court that the board is "absolutely rogue," you will not get an injunction.
If you tell the court that the board changed the HOA's name, you will not get an injunction.
If you tell the court that the board rewrote the bylaws, you will not get an injunction.
If you tell the court that the architectural guidelines contradict the CC&Rs AND that the HOA is prohibiting you from doing something that is in the CC&Rs, then you might get an injunction.

I do not understand your statement: "I have filed a suit against a homeowner that is paid in full and have not broken any of our rules?" Are you saying that the HOA has filed suit against someone who is paid in full and hasn't broken any rules?

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Sonia,

Typically it's a good idea to get a legal opinion before proceeding with any legal action.

An injunction is a court order requiring a person to do or cease doing a specific action.
See: http://www.law.cornell.edu/wex/injunction

Typically, injunctions can only be issued by courts other than small claims. Therefore, you will need an attorney.

A better solution (as it tends to be quicker and less expensive) is to become involved in your Association. Read and understand the rules and procedures. Then gather support from the members and recall or simply do not reelect those on the Board who are causing these issues. Then replace them with members willing to comply with the applicable laws and governing documents. Perhaps you would be willing to serve.

WalterM3 (Georgia)
Posts: 442

Posted:

I would think that the best and maybe only way to get an injunction for something like this is to convince the court that the Board of Directors was violating the clear provisions of the Bylaws and Covenants. The injunction would force them to follow the rules. But who enforces the injunction?

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 10/17/2014 1:47 PM
I would think that the best and maybe only way to get an injunction for something like this is to convince the court that the Board of Directors was violating the clear provisions of the Bylaws and Covenants. The injunction would force them to follow the rules. But who enforces the injunction?

Great question Walter. That's why court's don't like to issue them.

Money damages are easy to enforce because you can always get a sheriff to sell somebody's stuff if the person doesn't pay what the court ordered. And the judge doesn't have to see the same dispute twice.

But injunctions are a whole different animal. If someone doesn't perform, you have to go back to the court. And what do you do when there is a dispute over whether the performance under the injunction was satisfactory? It gets messy very quickly. And judges get unhappy with all of you just as quickly.

When it comes to things like voting rights and due process, injunctions can be had. But the further away you go from these fundamental rights, the harder it will be.

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

That is a really good insight. I do not want judges frowning at me.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

That is a really good insight. I do not want judges frowning at me.

Walt

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