Reasonable Time to Reply

Hello all! Hope everyone is having a great night.

I'm still trudging through trying to learn more about the chaos that appears to be our legacy.

I've been trying to get some information from current board members - like Articles of Incorporation (they are not filed with the Secretary of State nor are they in our book of records with our CCR & By-laws), more information on the dimensions in the layout (which I shared in a previous post), BOD mintues (which are also not in our book of records) and the Board has simply stopped replying to my messages. I never sent anyone more than 1 message a day, and never repeated my request more than once a week.

As an example, I sent our secretary a request for the Articles of Incorporation on June 13, after looking for them in our "book" of records. I emailed her again on June 20, I emailed again on June 30th. She never responded. So I emailed her again on July 9th and still no response. Clearly she's not happy with me. Maybe I was hounding her, but I feel like it's pretty important stuff. I finally sent her a message and asked her if she had informed the other Board members that it was missing and she finally responded with "yes, they are aware". Maybe I'm more concerned than I need to be.

Another example is that I asked a few clarifying questions on the layout July 1st and July 9th and I've received no reply, not even an acknowledgement of my email.

My two examples are really more to illustrate my frequency of emailing (so you know I'm not stalking them every day...I leave at least a week in between my inquiries).

So after rambling on for half a page - here's my questions I'd love your opinion on:

What is a reasonable amount of time to expect a reply from a Board member?

If I've emailed the question multiple times and waited at least a week between for answers and still have gotten no response - should I send a letter or certified letter in the case of something that I consider really important like the Articles of Incorporation and the fact that we may not be properly registered with the State?

Lastly, if the answer to my question is something that a vendor of the Homeowners Association would know - as in the dimensions - is it okay for me to contact them (I have their email) and cc: the Board member if they have not supplied the information in more than 21 days after it was requested?

Love to hear your thoughts!

Many thanks!

Darcy,

It may be time to lawyer up.

The recorded documents furnished by the developer stated that you were supposed to have an association incorporated as a non-profit corporation. Based on what you have reported finding, this sounds like a fraudulent representation as the association is not incorporated now and may never have been. What you do have is a group of yahoos running around claiming to be the association but are unwilling to provide any evidence of their legal authority to do so.

Yours is not the first association where the developer, for whatever reasons, failed to incorporate the association. This leads to a lot of questions that no one on this site has an authoritative answer for.

Hire an attorney, let him collect the information, and then consider acting on his advice.

It's very inconsiderate of them to not respond at all, but it seems that you have some of your answers and it would be very sad if you feel you need to take the advice of "lawyering" up because they won't respond to you in a timely manner. Timely being the operative word here.

Or perhaps those "yahoos" while trying to honor your requests, found out that the developer didn't do his due diligence and it's all such a mess they don't know which way is up. And having experienced that exact scenerio in our HOA, they are scrambling to get it straightened out. First they have to hire or consult with an attorney, then they have to file the paperwork and get their INC. status corrected with the state which can take four weeks or more. It took us several months to get it straightened out and during that time we had to be very cautious of every detail or request or statement because we were at great risk of liability issues. It effectively froze us because if your supposed to be INC. and you aren't but are doing business, you are most likely violating the law.

Perhaps some empathy can help your cause, since you most likely do not really know just what the board is up against at this point, if that is what they have found. It doesn't have to be taken personally, unless there is more to the story than written here. Like everything else in this society, we now view and take everything personally, when most of the time it has nothing to do with you. It's so easy to label every board as being anything but a good thing, just as it's easy for boards to think that any HO is wanting to cause trouble. But it's up to you and your board to move forward and seeing it from their side can help them see it from your side too.

What is your end game in this request of documents? If it's to protect your interest then perhaps an email to the board offering any help in figuring all the mess out would be greatly appreciated by them. Such support is hard to get though because HOA's are painted so horribly by so many people. (whether it's deserved or not is not the point)

Like our grandparents used to say, you catch more bees with honey than you do with vinegar.

Darcy

A valid question was asked. What is your end game?

Thanks

If your on a witch hunt, you should be requesting to view HOA records. Asking for one document at a time takes time and if your using a property mgmt company, time is money. So you should go there yourself to find what your looking for.

Thanks again for all the response -- very helpful.

KerryL - I've reviewed the Chapter 47C: North Carolina Condominium Act: http://www.ncleg.net/gascripts/statutes/StatutesTOC.pl?Chapter=0047C and Chapter 55A: North Carolina Nonprofit Corporation Act: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_55a.html and could not find anything relative regarding time to reply. I know some states have them, but I haven't been able to find anything for NC.

CrystalB - You make a great point. I do need to remember empathy. I just know that a group of homeowners have banded together and jointly gone to a lawyer for an initial consultation. I'm trying to remain neutral because I see both sides of the issue. But I did warn the board that I thought there was more than just an empty threat at hand. I have not revealed to the group that the Articles of Incorporation are missing or that in the CCR the registered agent that is listed has passed away. Here's an interesting article about a lawsuit that was decided when the registered agent wasn't reached http://carolinacommonelements.com/2013/02/11/do-you-know-who-your-registered-agent-is/ - I don't want that to happen to us.

John C - My end game is to limit the liability that we are currently exposed to and to make a sensible decision about running for a position on the board. I really do feel this group of individuals has pooled together enough money so that it won't cost any of them more than a few hundred bucks to really make a ruckus and the board doesn't seem concerned - or maybe they are behind the scenes. I should give them the benefit of the doubt. The election is the last weekend in August and honestly I'm not sure I want to be on the board with the storm that is brewing - that's right - I'm a coward. It's not that I only want to be on the board when it's sunshine and roses, because with the hundreds of posts I've read here - it's never sunshine and roses, but knowing what I know and all the deficiencies and animosities, it's a tough decision.

Steve M - I've already made the appointment and have gone twice to review the records myself. I offered to pay for any copies that I needed and they didn't have access to a copier, so the next time I went I took a scanner/printer/copier with me, which they were fine with. There were only 1 set of BOD minutes since November of last year when the fire broke out. I know they have had meetings because they have selected a construction firm, selected a new layout design for the interior of the complex, selected a new septic system (which required a assessment - that the entire HOA did vote for which was properly documented), etc. None of these decisions are documented in the record. Again, with the disappointment over the interior layout bubbling up I think the fact that they haven't documented any of these motions in the official records is concerning.

This makes no sense. You say there are no known Articles of Incorporation but that the CC&R's names a registered agent, who is now deceased.

A registered agent (or statutory agent) is someone named in the Articles of Incorporation. This may be amended by subsequent filings. I have never heard of a registered agent being named in CC&R's. Are you referring to the Declarant?

Larry

From what I found on the internet - a registered agent is an individual or a business, whose sole responsibility is to accept legal documents (service of process, lawsuits, liens, subpoenas)

In the CCR the service of process is listed as Mr. RM Jacks so I assumed (maybe wrongly) that it was the same as the Registered Agent. As part of my search, I found several homeowners associations that did have him listed as their Registered Agent, ours just wasn't one of them.

On another note, since my earlier post I got a call back from the Secretary of State - they searched as well and didn't find anything, suggested maybe we were unincorporated, which didn't sound like such a big deal the way he explained it, and suggested I call the county, because if we were unincorporated, that's where we would have been required to file. They looked online and in their paper records and couldn't find anything except the CCR and bylaws.

Hopefully I'm worried over nothing and the Board is working on this issue and will have it resolved before anything happens.

Darcy,

Real estate developers are notorious for having billion-dollar dreams and absolutely no cash of their own. They can borrow to purchase the land, they can borrow to purchase materials, and they can borrow to pay the contractors. But no one lends money to hire an attorney who wants cash, so developers often take the cheap way out by writing the declarations themselves even though they are totally lacking the knowledge to do so.

I suspect that your developer fell into that category. He knew that there was something called a registered agent but was clueless about articles of incorporation so he stuck that part into the CC&R's. I doubt that it effects anything but it is evidence that he had no idea what he was doing.

I would not recommend delaying consultation with the attorney. From what you have posted in other threads the current board sounds very unresponsive. If I recall correctly, the association secretary could not even state whether yours is incorporated or not and seemed to show no interest in finding out. The problem with giving the other party more time to respond when they have previously shown no interest in responding is that the clock keeps ticking. Sooner or later you will run into issues with statutes of limitation and doctrine of laches, meaning you will be stuck with the status quo.

BTW, I suspect your developer failed to incorporate the association for the same reason he did not use an attorney: no cash to pay for filing fees.

Larry - I would agree with you, but in this case, the Declarant is a bank in our state that is still in business. Seems to me that they would have known what to do and had the money to do it. Of course this was 1979 and things have changed a lot since then. The nice lady at the Register of Deeds that went back through paper files for me today, was laughing about how rate it was to refer to the paper files now that they are almost all digitized.

Tim - That's a great suggestion. I'm having lunch with two of the BOD members next week -- I think I'm going to use your exact words. Thanks!

Tim
Are you in my head? I've been spending the last hour or so reading every article I can find on the differences between incorporated and unincorporated and Why to Incorporate. I've not come across yours so I'll read them next. Thanks!

John - I really hope we can avoid that. It has been such a lovely place...and now it's just so divided. We have this new "voluntary mediation" law in NC -- if it's voluntary, I'm not sure why it's a law -- well I think the law part comes in because they are required to notify members about the existence of the voluntary mediation. If we have to go down a path to get to a resolution, I'd love to see us start there and not in court. "Voluntary Prelitigation Mediation. – Prior to filing a civil action, the parties to a dispute arising under Chapter 47C of the General Statutes (North Carolina Condominium Act), Chapter 47F of the General Statutes (North Carolina Planned Community Act), or an association's declaration, bylaws, or rules and regulations are encouraged to initiate mediation pursuant to this section"

I can see a HOA being not incorporated but not a Condo development, the very nature of the beast screams
incorporated. Darcy have you read the fine print of the Declarations, you know the boring stuff at the beginning where it lays out where the boundaries of the development are, whether it is to be incorporated or not, definitions etc. There is a chance that while most HOA corporations are named after the HOA or vise versa i.e Happy Daze HOA Inc. due to a conflict or other reason it is possible that the HOA corporation is named something totally different i.e. ABCXYZ Inc. dba (doing business as) Happy Daze HOA.

A consultation with an attorney is not going to provide you with the answer as to whether or not you are incorporated. You will have to pay them in order for them to research that and it sounds like you already have.

Remember when you do meet with them, their end game is to have you hire them for whatever they can, so be leary of what it is they say they can do for you. They are professional liars and get paid to do so.

if you have already checked with the Register of Deeds office in your county and surrounding counties for
similar names of your HOA and the Office of land records the N.C. Department of the Secretary of State and you can't find anything on your HOA, just exactly where the attorney look?

You don't need an attorney to tell you that you must become incorporated if your docs say that.

A recent experience of interviewing a new attorney, she didn't find anything, nothing on our HOA, but I was able to find seven, (7) different forms of our name at the dept. of land records, and they all showed all of our documents. How did I find it and she didn't? She tried to tell us we didn't exist according to her research. But we still had to pay her the consultation fee??

It sure sounds like the current board has just uncovered all the BS surrounding your HOA, and if your end game is to "decide" to be on the board, well, you should just run away now and sell your home because your current board is getting a taste of just what a thankless job it really is. They are probably trying to figure it all out, but now there is a band of owners who have hired an attorney, out of pocket? (really?)

I would love to talk to your current board and give them the much needed support they need to straighten this all out, because they are taking the fall for all the previous boards not doing their due diligence too. I know how that feels.

You want to help? Ask them to meet with you and the attorney you have hired. If you meet with the attorney on your own, it will cement the thought that you are on a witch hunt. plain and simple.