Homeowner being sued by NC HOA

I have just joined this forum. The main reason in doing so is because I am being sued and/or having a lien placed on my property by my HOA BOD. I have already met with a lawyer and we have constructed and mailed a letter to the HOA atty. I received a response this week that states that the HOA is going to proceed with the lien if I do not pay them the money they say I owe them.
I realize everyone that is in a bad situation with their HOA states it is the fault of the HOA and that they are blameless. It so happens in my case this is true. The HOA is saying that I owe them $13K for work that was done to fill in a sediment trap that was left by the developer. This sediment trap runs along my property as well as two other properties. There is a rather long and complicated history that has precedes this situation. I'll try to summarize by saying that I tried to beautify this sediment trap by cleaning it out,installing a pond liner and filling it so it would be a pond instead of a mosquito pit that holds water depending upon the rains and water table. I was notified at the very end of this project that the HOA had problems with me doing this and they issued a stop work order. I went back and forth with the HOA BOD about this for several month before I found a clause in out CRC documents that convinced me that I was indeed in the wrong. From that point forward I made it clear to the HOA BOD that I was in the wrong and that I would like to work things out. The HOA BOD gave me a list of things they wanted to have happen such as removing the liner and associated materials. In their words I was to, "return the pond to it's original condition". There were several other demands the HOA BOD made of me and we went back and forth with a few of their demands but in the end we were able to work things out and I was given a letter stating that the BOD thanked me for completing the job to their satisfaction. In addition to this letter I was told during our final meeting that this issue was behind me. At this meeting I was told that they had hired a contractor to fill this area in with dirt and I was asked to help the contractor by keeping the pond pumped out. I have a large pump and he had no other means available to keep it empty. I readily agreed to help keep the water out. I made a request that the contractor let me know when he would be working because my wife had just been diagnosed with breast cancer and I would be very busy with MD appointments. They expressed their sympathy and said we would work together as best as we could. Within the next two months the pond was filled in by this contractor. About 9 months later I received a letter from the HOA atty stating that I owed them $13K for this work. The letter was accompanied by two invoices from the contractor. The first was for the original estimate to do the job for $6K. The second invoice was for another $7K for additional fill dirt that was required above the original estimated amount. The letter from the atty stated that this amount was needed because I told the contractor that the pond was 4' deep at the far end and, according to the contractor, it was much deeper and he therefor needed this additional $7k worth of fill dirt to complete the job. Needless to say I was floored by this letter after knowing full well that I had met the requirements of the BOD in returning the pond back to it's original condition. I am one that takes responsibility for my mistakes and I was ignorant to the CRC clause that I was in violation of. I fully admitted this and worked with the BOD in order to make certain that they were satisfied. I must state now that I did not do everything the BOD asked me to initially do (one demand was that I write a letter stating that I would "be responsible for any future problems with the current condition of the pond" and that I would have this recorded with the county and have it run with my deed) however we worked through the things that I found unreasonable and the end result was one they found satisfactory. The idea that the BOD would hire a contractor for a certain amount and then pay him an additional amount of $1K more than twice the original estimate is troubling enough but to read that the contractor used information I supplied (which was totally accurate-I waded around in this puke pit several times and I knew exactly how deep it was) as an excuse as to why he underestimated the job is more troubling.
I originally thought this would be a shorter post but this is the bare minimum I thought would help illustrate the problem/issue.
I am completely lost and frustrated. I am being bullied by this BOD and I have bad feeling about the outcome. HOA's have such an incredible amount of power that I've read about but only now fully understand. As a homeowner I've come to learn the only way to deal with an injustice dealt by an HOA BOD is to spend ridiculous amounts of money in court and even then it is a gamble. When my atty met with me and I gave him my story along with documents supporting my claims he said e would be very surprised if the HOA atty didn't advise the BOD against pursuing the matter. The BOD has bottomless pockets and they have no one but themselves to answer to and this makes it nearly impossible to defend against.
In addition to the above problem(s) I have been stone walled by this BOD in my attempts to gain information that might help my case. As an example I requested the recorded audio from the closed BOD meeting and I was told I'd need to have an atty request these recordings. This is completely false but the BOD continually hides behind the, "attorney excuse" and this amounts to stone walling because they know most people are not going to want to spend $1k for two lawyers to go back and forth over some audio recordings of BOD meetings. This is just not how HOA BOD's are supposed to act. They have an incredible number of resources that thay can use to keep information from homeowners and homeowners have few, if any, resources available to help them penetrate the unjust walls that the BOD has around them.
Any help regarding my issue would be greatly appreciated. I know this is a large and complicated story with several considerations. I am more than willing to supply any additional information.

Howard,

I am not an attorney and I do not work in the legal profession.

The best thing I can say is to gather as much documentation on the whole thing that you can. These would include copies of Association minutes, copies of communications between you, the Association and anyone else involved in the issue (letters, e-mails, etc.) and make sure that your attorney has them. Also see if you can get statements from those who sat on the Board at the time you were told the issue was closed.

The other thing is that, since it sounds like you may be headed toward litigation, refrain from giving specifics about the case on forums like this. They are considered public and something you innocently post here (or elsewhere) could cause you problems if it goes to litigation.

You have an attorney. If you trust the attorney, follow their advice. If you have concerns, seek a second opinion from another attorney.

To me, this issues sounds like a contract dispute (although the Association likely sees it as a collection issue). Therefore, you may need an attorney more versed in contract law than property or HOA law.

I wish you luck.

Howard you just got some SUPER advice and pointers from Larry and Tim.

(I hope you keep us posted on what happens)

Despite several thousand words of text, Howard C2 does not state whether the sediment trap is within common land or his own unit boundary.

But maybe such is irrelevant. He did his prior diligence AFTER the changes instead of before, commendably recognizes his error, and has reached a remedial agreement for restoration. But apparently he has not performed what the HOA or condo corp or its professional whatever considers lawful restoration which may trigger a duty by the HOA.

Refusing to pay to restore to HOA specs, he now faces what some would call a charge-back and subsequent lien. There is presumably a wider public good in proper restoration that could be determined by an engineering skillset.

Exactly how does this scenario differ from sort of civil damage between neighbours, after which the damage causer agreed to restore the status quo but only on the damage-causers terms É eg I weakened your foundation but stuck a couple of 2 by 4s to prop it up.

I think JohnB is correct. That letter should be proof enough.

You said you did not sign and record that other statement/commitment they had asked you to. Despite that they still thanked you and said they were satisfied.

I second JohnB's opionio.

An additional thought:

If the sediment trap is required by any law, ordinance, or contract with a government agency destroying it by filling it in would be contrary to public policy.

Directors normally cannot be held personally liable so long as their actions are within the realm of what a reasonable person in a similar position would do.

By definition, a reasonable person does not violate public policy. Therefore, the directors could be held personally liable for all costs associated with filling in the sediment trap and for all costs that will arise in restoring it to its original condition.

Thanks for all the great advice everyone. I'll submit a more comprehensive response when I can use my laptop. I've been without Internet access for the last several days.
Yes, a nightmare is a mild description of what's been going with my hoa bod. To clarify, I've already hired a lawyer and paid him $700.00 to construct and mail a letter to the hoa bod. The response from the hoa bod atty came last week. My atty was surprised that the BOD didn't drop the issue - he also felt it was a fishing expedition but obviously they feel I'll either just hand over the cash or pay an atty to fight their claim in court. This is a perfect example for how a bod can bully a homeowner. Typically a homeowner will, "do the math" and realize that the money it will cost to litigate their claim could run into tens of thousands and no matter how obvious the evidence is in their favor a judge may rule in favor of the hoa. It is my understanding the courts in NC are very hoa friendly and claims won by homeowners are very rare. I am trying to find any way to fight this other than court. If I end up fighting this in court it will be me before the judge because I can't afford an atty to litigate the case.
There is another tidbit that I found interesting to while looking at the minutes of the meeting of the BOD closed sessions. These minutes are pitifully brief and inadequate hence the reason I'm seeking the recorded minutes. Still in all I found that there was a motion made by the BOD president, "to charge Mr. (me) for the cost of filling in the pond". This is a clear indication that the BOD decided to charge me well after the work I did to satisfy their demands to return the pond to its original condition was done to their satisfaction. Otherwise the motion would have been made to collect the cost of the work done, not to charge me for it. In other words the BOD, after making and passing the motion as new business, separated the previous situation from the decision to bill me. If the BOD had the idea all along that they were going to bill me even after telling me I was done then there would have been no need for a motion and the BOD would have simply addressed the charge by saying, "mail Mr. Me a bill for the charge for filling in the pond" something to that effect and it would have been discussed while they were going over "old business".
In regard to any official entity/authority having jurisdiction over the disposition of storm water runoff and/or the disposition the of structures required to mitigate sediment from fouling sensitive creeks, rivers, etc there is no concern. I personally met with NC DENR about the pond twice to make sure I was not getting into a bad situation with them or any other government environmental department. One agent actually came to the site and the resulting opinion was that the pond was not able to impede and water run off. Even more importantly DENR stated that they have absolutely no ability to go around inspecting these types of structures. In addition this is a private community and the only way they would be able to get involved was if someone claimed there was sediment entering the waters down stream (way down stream) from this pond. The area where the pond was does not dump into any stream if it overflowed during a catastrophic flood, it overflows into 8 acres of designated wetlands. Lastly DENR told me and emailed me their assessment that they have no jurisdiction over this area and they know of no current division or department that does. They said this was a temporary sediment trap for handling sediment while roads were cut in and unpaved. Once paved they could be abandoned and left alone or filled in so long as the fill did not impede flood water. If it did they couldn't do anything about it anyway without a complaint and lengthy investigation which, they said, was not realistic consider g the small scope of this pond. BTW the hoa bod also inquired with DENR and DENR basically said they have no grounds to stand on if they were trying to get DENR to twist my arm.
Again I'll answer all questions when I can use my computer. Smart phones are great but not for adequately addressing the issue here.
Thanks to all.

Howard

Might I be as bold as to suggest you learn to use paragraphs (the ENTER key) on your computer. Would make your posts much easier to read. As it is, you being right or wrong matters little when it hurts my eyes to read your posts.

Thanks

Boo you JohnC! Boo you! What up with your fact reading? Geez! Are you ready to have that Margherita now and run off to Mexico with me yet??? I am waiting.... :-)

Check with your local government Planning Dept to see if sediment pond was required to be built for the subdivision. The local government may be able to help solve this issue. As was common area and you put back to same condition, for BOD to choose to fill in would be common expense ... If the BOD did not make mistake of filling in part of a storm drainage system. If they did ... Well their bad to make major changes to common areas if not in essence required maintenance they should have received member input and approval.

OP posted regarding DENR. The State Environmental and Local Government are two separate entities with different codes and regulations. In my area the County or City also regulates these requirements, if they are needed in some subdivisions.

A couple of thoughts:

1. Accord & Satisfaction is a straightforward legal concept of contract law. One or both parties believe that Agreement 1 has been breached. The parties mutually agree to Agreement 2 instead. A performs under Agreement 2 to B's satisfaction. B cannot come back to A with demands from Agreement 1. Agreement 2 is the Accord. The performance by A and acceptance by B is the Satisfaction. In your case, your breach would be your violation of the CC&Rs that you admitted. Under Accord & Satisfaction, the HOA would not be able to point to any obligation in your CC&Rs that conflicts with the A&S that the board agreed to. If they said your obligation was done, it was done.

2. The HOA improperly billed you for work done on your 2 neighbor's property. It makes no difference that the original sediment trap was on your property.

John,

Yes, the OP initially changed the pond. However, he returned it to the initial state it was in prior to him making the changes. That was done at his expense and the Board signed off on it.

Therefore, what you are saying is correct, he was on the hook and paid the price.

This is a new issue where the Board took action to fill in the pond after it was returned to it's original state (which the Board insisted the Homeowner do).

Thanks for this information. I'll mention it in my meeting with my atty tomorrow. The problem still comes back to being able to use the information you state. It has to be presented in court which =$$$. I am going to find out more about trying to represent myself but those age old words ring in my ears when I think about it. "A fool for an attorney..."


Given the fact that I've spoken with the people that have jurisdiction regarding such matters I have to respectfully disagree. The sediment trap was required during the development of the roads. Once the roads are paved and accepted by the county as being properly installed then these sediment traps are no longer a concern for any agency etc. Please believe me I did my homework regarding this matter and got this information straight from the horses mouths.
This is not a required storm water utility
The state is not involved.
I did violate the covenant and I worked with the HOA BOD to correct my violation and I was given approval of completion by the HOA BOD.
"binding contract"/? Not sure what you are referring to??
"read what I signed off"?? Again not sure what this is asking??
Thanks for the input.


This is correct. Thanks


Thank you for this input. I have no current plans to speak with the board however my wife needed to and I was not about to try and talk her out of it. She is right about things 95% of the time. The other 5% of the time I am wrong .
I will also ask my atty about using the sentiment of the community to sway the BOD. I have read of others that were sued by their HOA and how they brought the issue(s) to the community with some success. I feel my fellow homeowners would not enjoy the way the board money for this pond fill in. We have several other issues where this particular BOD has spent money in ways that the overwhelming sense from the community is that they are wasteful and are not listening to the homeowners opinions. I could elaborate but will not do so at this time as it would serve no purpose here.
Thank You

Does your hoa send bills for this type of situation or do they automatically have an atty construct and send a letter? Isn't there a process for a dispute between the hoa and a homeowner that should be followed prior to the escalation to a lien being filed? I feel like there should have been some sort of dialogue between the BOD and myself. Not only prior to the atty letter I received but prior to the work getting contracted. I feel like the BOD should have told me from early on that they wanted the pond filled in and if I didn't do it then they would and then give me a bill (as they have done obviously).
The way I'm reading your post your hoa can make a ruling on a homeowner dispute, have the homeowner resolve the dispute by accepting the ruling and abiding by it, and then your bod can change their mind and demand more from the homeowner subsequently??
Thanks

Your HOA isn't handling this situation correctly overall. That is the major part of this situation. It is why your going to court. This would NOT have been the way we would have handled the situation at all.

For example in our HOA, you painted your house the wrong color. We have approved color palette. Prior to buying and painting you are to submit your color choice to the ACC (if existed) and/or the board for approval. If you do not do this and then paint the house bright purple outside the approved color palette, we can take action. That action would be to send you a letter notifying you of the violation and quoting the rule violated. We would give you the choice of correcting it on your own at your cost or for us to fix it at OUR cost. If we fix it at our cost, we get to choose the color and contractor. Plus we will send you the bill for this. If you refuse to pay, then we would send a certified letter with intention to lien. We would then lien if not paid in a set time.

Mind you we can not foreclose on you for this bill. It can only be a lien. It works more like a "fine". We had the power to fine but we needed a fine schedule with defined violation. Most HOA's do not have this. However, fines typically can't be used in the BASIS of foreclosure. Although a few states do tricky accounting applying you dues to the amount owed to make it look like not paying the dues. Unpaid dues can be the basis of foreclosure.

So no, your HOA is not handling this situation as it should. Instead, it's doing the lawsuit thing. A good sign your not dealing with and intellectual group of people. You can't stop it though. Just roll with it and bring it on at court.

HowardC,

I am so sorry, you must feel so frustrated. I does not seem fair at all.It really stinks that you would have to spend more to fight it, so they just get away with it. I hope you do gain support from other homeowners, let them know the story the way you let us, they should help and support you if they are good people. I would have no problem sticking my neck out for someone else because I know I would want someone to do the same for me.

I hope things turn around for you and that your wife stays well,

Emma

A friendly word of caution on your expectations about a neutral party's opinion:

1. Arbitration - If you want a neutral's opinion on who is right and who is wrong, arbitration is the way to go. The arbitrator's opinion can be binding or non-binding.

2. Mediation - If you want a neutral's opinion on how the two sides can reach a mutual settlement regardless of who was right or wrong, mediation is the way to go. The mediator's opinion is always non-binding.

3. Med-Arb - This is a hybrid form where the neutral mediates first, and if settlement is not reached, then arbitrates.

The questions on which format to use and whether an arbitrator's decision will be binding or non-binding are decided in advance. One reason for this is that people tend to disclose information differently to a neutral mediator and to a neutral arbitrator. In an arbitration, you will want to keep some information close to the vest because you want the arbitrator to decide in your favor. In a mediation, keeping your guard up is less likely to be a concern to you.

If you choose a neutral who was a former judge, you often wind up with an arbitration even if you seek a mediation. Most of them are so used to handing down decisions from the bench, that they really can't get out of that mode. So picking the right format and the right neutral will determine if you are going to get the kind of opinion that you seek.

As far as I know, only the members of our Board know that the concept of Controlled Facilities is a part of our legal structure.

Howard - In NC the Voluntary Prelitigation Mediation act House Bill 278 became effective 07/1/13. The General Assembly of NC enacted: Sect 1 Article 5 of Chapter 7A of the General Statutes was amended to add Prelitigation mediation of condominium and homeowners association disputes. Read all the bill to see if you want to go this way. Hope this helps.

A new thread

That's the way it is done.