Hoa by laws interpretations

Started by MariaV1 • 36 replies • 1987 views

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MariaV1 (Florida)
Posts: 2

Posted:

Questions, the HOA by laws of our association states that the maintenance/ painting of the fence is the responsibility of the association, clear stated and review by an attorney. The board insist that because the developer did not paint the fence is the responsibilities of the owner to paint the fence. It's my understanding that it does not matter what the developer did 30 years ago, the association has to abide by the HOA by-laws. The association is sending letter that if the owner do not paint the fence they will fined them $100.00 per violation up to $1000.00 for the violating of the HOA by- laws, which again states it is their responsibilities. I am not an attorney but if the HOA- by law clearly state that it's their responsibility how can they think that they can fined the residence for not painting the fence. It's a bit of an oxymoron the association is clearly in the wrong. What can the residence do to stop the harassment of the association against the residence. Also they allowed some residence who end up replacing their fence because again they do no want to spend the money in replacing fence not to paint their fence and then they want to claim architectural grounds? Can anyone tell me what I am missing here? New election is not until March so I need help on how to stop their harassment.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

attorney

this is a contract issue

TimB4 (Tennessee)
Posts: 21,059

Posted:

Maria,

As John said, this is a contract issue.

In my laypersons' opinion, if the Association doesn't want to paint the fence, then they need to amend the Bylaws. Until that is done, they are responsible to paint the fence.

Now, my opinion really doesn't mean a thing. When there is disagreement in the interpretation of a clause of a contract, one of the following is needed to resolve the issue:

1) The parties involved change the contract to something they agree with (compromise)
2) One party agrees to go along with the other parties interpretation
3) One party brings the issue to a third party (Court, Mediator, etc.) for a ruling on which interpretation is correct.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JohnB26 on 11/26/2014 9:24 AM
attorney

this is a contract issue

What you may want to do is have an attorney look over the papers and, if they agree that the Association is responsible, have them write a letter to the Board on your behalf. This may prompt the board to back off, get their own legal opinion or (worst case) dig in their feet and escalate the whole issue.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

We may have a storm brewing over fences. We are standalone patio homes with each home having a 6 foot privacy fence around their backyard. Most probably some 80 running feet. Our HOA is responsible for all lot landscaping (outside the fenced in area) and the home's exterior (brick work, trim, roofing, etc.).

We are undergoing transition from the Declarant to owners. In a recent neighborhood get together someone asked about fences. I drew their attention to the covenants where it said owners are responsible for fence maintenance. Some said well they understood the HOA did all outside maintenance so it must include the fences. I replied read what it says here. Got the typical reply of well I did not know that when I signed.

Someone then asked how would we control fence repair/replacement. We discussed that the Covenants say an owner must maintain "Community Wide Standards". I replied as the 112 fences are all identical, then that certainly sets the "Community Wide Standard" for fences. I also drew their attention to where the Covenants said the BOD could notify an owner that their whatever (fences, additional plantings, etc.) does not meet "Community Wide Standards" and they have two weeks to commence to rectify the issue. If they fail to rectify the issue the Covenants are clear that the HOA can do it and bill them. Typical reply by one of our Chief Complaining Officers (CCO's) was will do not ever try coming on to my property to replace my fence. I replied well let us hope we never come to that.

The fence issue is some 10-15 years down the road but I expect this is not the last we will hear of it. I know the CCO is trying to rile some folks up.

Comments?

EmmaH1
Posts: 674

Posted:

Seems like you have all the bases covered, John. Your covenants seem very unambiguous, the consequences are spelled out. Your CCO knew all of that when he purchased. I'd ignore him. You already have everything in place legally. No worries.

EmmaH1
Posts: 674

Posted:

Since you work closely with your developer why don't you have him put stick something in more specific about fences while he is still in control? if you feel necessary?

**patio home communities look so nice when fences are well maintained and uniform, especially within brick communities.

GlenL (Ohio)
Posts: 5,491

Posted:

Maria, since you are in Florida, the Board has several hoops to jump through before they can fine.

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.—

(b) A fine or suspension may not be imposed without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed. If the association imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

Studies show that 5 out of 4 people have problems with fractions

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By EmmaH1 on 11/26/2014 9:27 PM
Since you work closely with your developer why don't you have him put stick something in more specific about fences while he is still in control? if you feel necessary?

**patio home communities look so nice when fences are well maintained and uniform, especially within brick communities.

We are having several Covenants changes made by the Declarant but we felt the fence issue was sufficiently covered.

One of the changes that you will personally love is we are going from a 50% to a 25% Quorum....LOL

EmmaH1
Posts: 674

Posted:

Your right JohnC, I would be against that 25%. But......In your defense, you say you have such a low turnout must be very frustrating for you. So I can understand that you really do have a problem going on.

BobD4 (up north)
Posts: 1,002

Posted:

How many long-running communities ever raised their general OWNERS MEETING to 50 % or higher present/proxied for mere quorum (rather than the opposite direction )? One authoritative source speculated that in 1970s many civil servants & their masters believed naively like : "this will force involvement & deter apathy . . ."

Have wondered whether - if such was written in at time of original subdivision - this really was a deliberate obstacle to protect the developer and/or its sweetheart or appointed 'first' Boards during period of numerical control of all or most lots end-user lots ? ( But then I hear instead about other powerful developer-friendly stuff in some U.S. HOA CCRs, like giving the developer whacky vote formulas / presidential veto, retaining ownership of superintendent suites & building systems etc . . )

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 7:14 AM

Your right JohnC, I would be against that 25%. But......In your defense, you say you have such a low turnout must be very frustrating for you. So I can understand that you really do have a problem going on.

Emma

I was for going with 20% but we settled on 25%.

I have been a member of 2 HOA's in IL, 2 in MA, and 2 in SC. Associations ranging from 40 to 700 members. Only one time did I see an Annual Meeting where more the 20% or so of the owners attended (in person or via proxy). That one time required 6 months of hard work (door to door canvassing, picnics, tables set up at the pool, flyers mailed/handed out, proxy gathering, Emails, etc.) by a small group dedicated to replacing a few of the BOD Members and even then the Quorum need (50%) was barely met.

In one former neighborhood in MA (The Greens of North Reading MA) they had a Special Meeting as each home (single homes and townhomes) was going to have a special assessment of $25K to $30K for needed upgrades and repairs. There was over an 80% owner turnout with 90% of them voting yes. That Special Meeting effort was a major task/project that took almost 18 months of preparation/work but as the vote says, 72% of all owners agreed such was needed. This was the largest HOA owner turnout I had ever seen. I wonder why........LOL

BobD4 (up north)
Posts: 1,002

Posted:

which justifies why some condominium laws allow owner CONSENT process eg door to door signups instead of present/proxied votes at an owners meeting. Lots of scope for tainting.

EmmaH1
Posts: 674

Posted:

JohnC,

JohnC,

Maybe....I'd be a little more likely to entertain the idea of a lowering the percentage, if it were only allowed involving common areas issues. I do agree that everyone was aware changes were bound to occur concerning common area property and maintenance. I do agree common areas should not only be maintained they should even be improved upon. I do agree more people should attend meetings and participate. My personal concern is private property rights in stand alone homes, specifically adding a new more burdensome restrictions, when nothing of the sort was mentioned or even contemplated in the original CC&Rs.

Changing the subject a little, listen to this John, I think you may even see my point on this one:

If you can believe this, my CRAZY BOD is neglecting to maintain and repair the common areas. The entrance sign has a pretty water feature. According to the original CC&Rs we are responsible to "maintain entrance to at least to the condition that the declarant had originally constructed it". Well the pump broke (struck by lightning) so the water feature is non functioning now. They refuse to address this issue won't even get an estimate to fix it. In fact, in their proposed new and amendmend CC&Rs they have omitted the original covenant that states they would repair it to original condition. They replaced it with "HOA will maintain the entrance as decided upon by the HOA". I bought my property here knowing that that sign would be kept in the condition it was originally constructed, so did they. Now they are trying to changing things to remove their original responsibility. They were aware of their responsibility when they purchase here. (If they didn't want that responsibility they should not have bought here.)

The members of the BOD don't have a view of the entrance sign from their own homes so fixing it is not a priority of theirs or important to them. They seem to only care about their own personal matters/agenda. They only want to address things that matter/affect them. (In my opinion they are more concerned with their new job as rulers over others lives, instead of property values. This position of authority has gone to their heads.)

I would like my property values kept up. I don't think its being done in my situation, I think they are hurting them actually.

I know my situation is not like everyone's or yours. I would hope it is rare.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Emma,

If the Association is really under declarant control, as you believe, than your issue about the water feature not being repaired is with the Declarant.

RayC4 (Virginia)
Posts: 173

Posted:

Quote:

Posted By TimB4 on 11/27/2014 1:30 PM
Emma,

If the Association is really under declarant control, as you believe, than your issue about the water feature not being repaired is with the Declarant.

Emma states that: According to the original CC&Rs we are responsible to "maintain entrance to at least to the condition that the declarant had originally constructed it". Well the pump broke (struck by lightning) so the water feature is non functioning now...

Tim, what authority do you have in mind whereby the Declarant has the responsibility for the repair? (per Emma's note, the CC&R's clearly state that it is the HOA's...) I ask because we have this very issue going on in our Declarant controlled subdivision.

EmmaH1
Posts: 674

Posted:

Tim,

According to our CC&Rs is was NEVER the responsibility of the Declarant to maintain and repair the water feature. We as homeowners no matter who owns the common areas are and have always been responsible. That is ONE thing clearly stated. The entrance sign it was constructed according to building codes by licensed contractors and functioned well for some time. It was/is our responsibility according to the governing documents on record at deeds office, to "at maintain the entrance as originally constructed by declarant" (it also continues to say we may improve it). The HOA Inc. is in violation of covenant currently and has been for a while. ( That is why this BOD is trying to cover their "you know whats" by amending the CC&RS, take out that covenant, sneaky I think.)

EmmaH1
Posts: 674

Posted:

sorry " to maintain as constr....

EmmaH1
Posts: 674

Posted:

Tim, I know you are on a BOD but you always seem to sort of defend them, they are not all good guys like you, you know? Some are really bad.

EmmaH1
Posts: 674

Posted:

On top of it all this water feature not working has left standing water drawing mosquitos which may carry disease and I feel puts the "health, safety and welfare" of our community at risk something we are all responsible for.

I have brought this to their attention only to receive no response. I may have to notify environmental control/board of health about it. I wonder what an insurance agency would have to say about that.

They have let all this go ignoring these problems but spend money on trying to amend the CC&Rs to avoid their own responsibility and try and gain control over other neighbors lives and individual property.

I guess they would rather spend the homeowner money on the HOA attorney.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 2:59 PM
Tim,

According to our CC&Rs is was NEVER the responsibility of the Declarant to maintain and repair the water feature.

Emma,

I was speaking directly to your situation. Either the corporation is indeed the Association or the Declarant is the Association.

If the Declarant is the Association, then it is the Declarants responsibility to fix said feature.
If the Corporation is the Association, then it is the Corporations responsibility.

Additionally, if the front entrance has not been turned over to the Association, it is still the Declarants responsibility.

In one posting you say that the Corporation is not the Association. In another posting you say that the Corporation should be fixing things. I really think that you need to have the big issue resolved - who is actually in charge of the Association - The corporation that claims responsibility, the Declarant who doesn't seem to be pressing the issue, or an unknown set of Board members who have never been elected?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RayC4 on 11/27/2014 2:14 PM

Tim, what authority do you have in mind whereby the Declarant has the responsibility for the repair? (per Emma's note, the CC&R's clearly state that it is the HOA's...) I ask because we have this very issue going on in our Declarant controlled subdivision.

The Declarant is still in the picture.

Per Emma's threads and postings, there is a question as to who is actually in control of the Association.

As I posted [emphasis added]

Quote:

Posted By TimB4 on 11/27/2014 1:30 PM

If the Association is really under declarant control, as you believe, than your issue about the water feature not being repaired is with the Declarant.

As you can see, I'm not saying it isn't the Associations responsibility. I'm saying that, per Emma's posting, she needs to find out (perhaps through the courts) who is in control of the Association. If it's the Declarant - then the Declarant needs to fix the feature (perhaps using Association funds). If it's the Corporation - then they need to fix the feature. If the courts rule that a third entity (receiver, new elections, etc.) will be in charge, then they need to fix the feature.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 3:05 PM

Tim, I know you are on a BOD but you always seem to sort of defend them, they are not all good guys like you, you know? Some are really bad.

Emma,

I'm not doing that. In fact, I often advocate tossing the bad board out be becoming involved in the Association and recalling or simply not reelecting the individuals causing the "bad board."

I'm just commenting on your complaint that your current Board, who you have indicated that you do not believe have legal authority to run the Association, might not be the one's responsible to fix the water feature. It depends on who has the legal authority to run your Association.

You seem to want to have it both ways. You don't believe that the Corporation has the legal authority to be in control of the Association, yet you want them to fix things that the Association has the legal responsibility to fix.

EmmaH1
Posts: 674

Posted:

Tim,

Our covenants would still be enforceable regardless of whether a HOA was legally formed or not. Even if a "HOA" never existed at all it would be our resonsibility. WE as homeowners/lot owners according to our CC&Rs are responsible to "maintain the entrance sign as originally constructed by the declarant" period.

(remember again that in SC there are NO laws that pertain to single/stand alone homes.)

All the other legal matters going on here, have no bearing whatsoever on this issue. It was all of the owners responsibilities from day one to be responsible for the upkeep of our entrance sign including the water feature. It did not matter who owned it (still doesn't) The declarant made sure that covenant was clear.

I know my situation is confusing to say the least so I can understand confusion by anyone.

EmmaH1
Posts: 674

Posted:

Tim,

I most certainly do not want it both ways.

My complicated issue with the HOA Inc.s legal status concerns the true mandatory status and the degree of actual authority/power they have now because they have not followed contract law in the way they think they gained their claimed control. It's a completely separate issue.

None of the above paragraph pertains to the water feature and that is why I had said I would try not involve my "other" legal mess in my current posts.

EmmaH1
Posts: 674

Posted:

I am surprised that you Tim cannot find fault with any of these BOD actions or lack of actions? very puzzling to me.

EmmaH1
Posts: 674

Posted:

Anyway the BOD admits/says they are responsible they just don't want have to fix it like I said. They want to amend the CC&RS so they do not have to fix it. They want to amend the CC&RS so they are not in violation themselves.

EmmaH1
Posts: 674

Posted:

What I have always said Tim, is regardless of what does happen in my legal situation, I will never shun away from paying/contributing my fair share/assessment money to carry out anything that our original CC&Rs say we accepted responsibility to do or not do when we purchased our home here. We want to and do obey the restrictions and want the covenants upheld including the one that says we will be responsible for the entrance sign.

I know of actual communities here in Lexington, SC that have a very similar declaration to mine (in it mentions declarant incorporating a hoa theirs did not do it either). And they do not have a HOA formed or ever created. They do maintain common areas, insurance etc;. One that comes to mind is an all brick upscale neighborhood large lots near golf coarse. This community has a very high resale value. When a home does go on the market the realtor advertises the fact that their is no strict HOA as a plus/asset) People there seem very happy and neighborly no signs of conflict. Lots of owner pride apparent. I think what they decided to do worked well.

Our Declarants desire was for us to be a small informal community with relaxed rules and a nicely maintained entrance and common areas. Some people here are trying to change the "character of our community as it was intended to be" (but they may even get away with it, sadly in a way they already have.)

EmmaH1
Posts: 674

Posted:

Tim ,

Where is the a law that says "if the front entrance has not been turned over to the association, it is still the Declarants responsibility"

My CC&Rs say nothing of the sort, My CC&Rs do not have any mention of a time or point in development here that the front entrance will be turned over, it actually doesn't even say it EVER must be turned over by the declarant.

I do not have a problem with their association being in charge of what was spelled out in the orginal CC&Rs. (power over my property is the legality questioned.)

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 3:46 PM

Our covenants would still be enforceable regardless of whether a HOA was legally formed or not.

Asolutely correct.

The question becomes, as I pointed out, who are they enforced upon? You need to know who is legally running the Association in order to say it is their responsibility to fix it and, if necessary, to bring enforcement action against.

Quote:

Posted By EmmaH1 on 11/27/2014 3:46 PM

(remember again that in SC there are NO laws that pertain to single/stand alone homes.)

I do remember that. It's simply contract law. You simply can't enforce the terms of a contract unless you know who the other party is that is part of the contract.

Quote:

Posted By EmmaH1 on 11/27/2014 3:46 PM

All the other legal matters going on here, have no bearing whatsoever on this issue.

Well, if you believe this, then who would you serve the legal papers on to enforce the CC&Rs?

BTW, if you serve them on the Corporation claiming to have legal authority, it can now be argued that you are now recognizing their authority (by the action of serving papers on them) and you no longer can contest their authority to call a meeting to amend the CC&Rs.

You need to understand systems and how one action here can cause an affect over there. Therefore, I would urge you to rethink your position and keep in mind the big picture, not the smaller ones. Based on your posts, your big picture issue is who is actually in charge/control of your Association. Once that is decided, you can go after the smaller issues as you now know who to actually go after.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 3:58 PM

I am surprised that you Tim cannot find fault with any of these BOD actions or lack of actions? very puzzling to me.

Emma, it's not that I can't find fault. If they are responsible to fix it then they should fix it.

What I can't find is, based on your posts, who the legal board is. That is all I was pointing out.

It's not an issue of who is responsible - that is very clearly stated in your documents, it's the Association.

It's an issue of who is legally in control of the Association.

I'm simply pointing out how these issue interrelate to other issues. This is based, pretty much, on what you have posted in the last few weeks.

If you believe that the corporation has the legal authority to control your Association, then you have a Board of Directors that doesn't want to fulfill their responsibilities. In that case, I would encourage you to gather support and vote the bums out. However, if you believe that the corporation has zero legal authority to control your Association, then the Declarant would still be in control of the Association and the Declarant would be the one that has to take action to fix the water feature.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 4:03 PM
Anyway the BOD admits/says they are responsible they just don't want have to fix it like I said. They want to amend the CC&RS so they do not have to fix it. They want to amend the CC&RS so they are not in violation themselves.

So you are recognizing the Boards authority to run your Association?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By EmmaH1 on 11/27/2014 5:15 PM

Where is the a law that says "if the front entrance has not been turned over to the association, it is still the Declarants responsibility"

Mind you, that is not the main issue I was pointing out. I was pointing out that IF the Declarant is in charge of the association, then it was the declarants responsibility to fix the feature (as they would be the Association). As a side note, I added that if the property was never turned over to the Association, it would still be the Declarants responsibility.

I can not point to a specific statute, as I don't know the statute.

However, it would be simple property law. If the entrance signs were not given to the Assocaition, then the Declarant still owns that property and the Declarant would be responsible for maintaining their own property. Once the property is deeded to the Association, then (and only then) would the Association be responsible for the maintenance of that property.

The act of conveying (typically by quick claim deed) the property to the Association is what makes the common area the responsibility of the Association. Until then, it's the responsibility of the property owner - the Declarant.

JamesO6 (Florida)
Posts: 170

Posted:

Quote:

Posted By MariaV1 on 11/26/2014 8:05 AM
Questions, the HOA by laws of our association states that the maintenance/ painting of the fence is the responsibility of the association, clear stated and review by an attorney. The board insist that because the developer did not paint the fence is the responsibilities of the owner to paint the fence. It's my understanding that it does not matter what the developer did 30 years ago, the association has to abide by the HOA by-laws. The association is sending letter that if the owner do not paint the fence they will fined them $100.00 per violation up to $1000.00 for the violating of the HOA by- laws, which again states it is their responsibilities. I am not an attorney but if the HOA- by law clearly state that it's their responsibility how can they think that they can fined the residence for not painting the fence. It's a bit of an oxymoron the association is clearly in the wrong. What can the residence do to stop the harassment of the association against the residence. Also they allowed some residence who end up replacing their fence because again they do no want to spend the money in replacing fence not to paint their fence and then they want to claim architectural grounds? Can anyone tell me what I am missing here? New election is not until March so I need help on how to stop their harassment.

If the fence is now the Property owners property, I'd tear it down, problem solved.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Maria,

I apologize for my part in taking the thread on a tangent away from your issue.

thanks for bringing the tread back on track James.

Tim

EmmaH1
Posts: 674

Posted:

Maria,

I too apologize.

It was my comment to JohnC on a common area problem that I let evolve into a conversation w/ Tim about another issue.

Sorry

MariaV1 (Florida)
Posts: 2

Posted:

Thank you all. I did have an attorney who deals with Condo/HOA he read the doc's and he clearly states that the fence is their responsibility plus other maintenance jobs that the association is not providing. I will take "TimB4 from Virginia" advice and as far as the Fl statue 720.305 the association can only fine me if I violated a the hoa doc. The committee went against me but I knew it was going to go against me because the fining committee are all friendly with each other and due favor for each other. I also spend the day taking pic and asking my neighbor if they received a letter that they have to paint the fence and a few said no and their fence has paint residue, like they pressure clean the fence, which is what I plan to do this weekend. At times I feel like I'm being harass and they are being prejudices against me. Now to fine an attorney who will not charge an arm and a leg. Will a para legal help out in writing a letter. Again thank you for help!

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