HOA with just 3 members in CA

Hi everyone!
Here is a problem that I would just love to get feed back on.
I live in a UNINCORPORATED ASSOCIATION in Southern Calif. We only have 3 condos in our association.
We all moved into this association back in December of 2005, with brand new homes. We do have CC&Rs in place, but as far as I can tell, no Bylaws.
The other two (members) have not paid their annual assessment (which just consist entirely of the exterior Home Owners Insurance policy) and have defaulted on their home loans.
We pay no monthly dues (on the honor system to pay the assessment) and thus, have no back-up money to use for well, say legal cost (small claims court fees).
We do have a "Statement By Unincorporated Association" filed with the CA Secretary of State, but the 'agent' listed is the one who has not paid their assessment, and thus, I would like to know how I can become that agent legally so I may be able to 'represent' the association.
I attempted to take one owner to small claims for reimbursement of their HO insurance policy (which we paid because if we didn't, our insurance policy would cancel and thus, we would be in big trouble with our mortgage lender)
only to have the court tell me that the 'association' should be the plaintiff, and not me. I told the judge, 'you are looking at the association (me!)' but he said that members can't take members to court for a rule that is backed by the association, even if the money I used were of personal funds.
Yes, I am aware that I need to seek legal advice, but again, this is ALL coming out of my wife and I personal accounts, and thus, money is limited.

Does anyone know how I may:
Change the agent with the CA Secretary of State?
Can I take the other members to small claims as an agent to the association?
Can I put a lien on the home without going through the courts (our CC&Rs state we can do this for failure to pay dues/assessments.)?

Well, thanks in advance for any and all help in this!

Michael

Michael:

You can access the Secretary of State online and for a fee change the Registered Agent. However before I would advise you to do so there are many questions I have first. You can contact me during business hours Eastern time and perhaps I can direct you and give you some insight, free of charge, of course, your dime! lol

"Our HOA can disband ONLY if we turn it over to a management company."

Melissa:

The above statement made by you seems to be erroneous. In my 25 years I have yet to see any governing document read with your above statement. Although some documents have a disbanding section, it is never when turned over to a management company. An MC is a hired Agent to act on behalf of the Board of Directors. Disbanding (only allowed in some states) would take 80% sometimes more of the membership to vote in favor of doing so.

Believe me, I looked into dibanding our HOA. The MC does NOT act on our behalf. They do what the BOD tells them to do. It is NOT the other way around. We PAY them to manage the books and pay bills. The BOD/Officers still have to approve the money to be spent and sign those checks.
Our CC&R's state that the HOA can disband if they get 75% of the homeowners approval to diband. It then has to be turned over to a MC to control. Thus leaving the homeowner's under the MC's control. The homeowners no longer have any input to how the HOA is run. The homeowner's are then bound to the rules of the MC and at whatever rate they want the homeowner's to pay.
As for the other situation. The Developer appointed you President. The other 2 members lost their rights to vote once they stopped paying. It may be possible for you to vote yourself as the president. I never had to sign anything recognizing the fact that I was president officially anywhere. I did have to sign paperwork with President next to it at some points. I also had to have my name put on the bank account to cash checks. That was most likely the only place that recognized I was in control was the bank.
There is another post on here in regards to filing liens without an attorney. It is possible. However, I will give you a heads up, NOT to expect help from the clerks of the courthouse in your endeavors. They may give you the forms but no help. They like to deal with "Legal" people and not layman. However, once you do the process once, you will be able to do it again. I do believe it involves running an ad in the newspaper as well to give legal notification of a lien/foreclosure. So there are other adminstrative costs to be aware of. Much cheaper than a lawsuit.

NO I am NOT incorrect in stating what I stated. Our CC&R's specifically states that if the homeowner's association is to disband the "common property" has to be turned over to a Management company.
We own the lot the house sits on and the HOA controls the yard around it. Mostly any area where the grass gets cut is the common property. That is what the ONLY responsibility of our HOA has is to maintain landscaping. NOT all HOA's are alike with the same rules. The setup of our HOA is different. The property is about the size of a postage stamp and runs together. Some of the houses are connected by a wall while others are separate homes divided by about 10 feet. Not mowing the lawn would be a HUGE issue in such close quarters.
The last time I checked, the MC is a HIRED contractor hired by the BOD. The BOD is responsible for enforcing convenants, restrictions, and by-laws. They simply have the MC send the letters out FOR them. That does NOT indicate that the MC has control of the community. They do whatever the BOD request of them if it is a properly run HOA. It may appear the MC is running the place to many but they shouldn't be. The MC should be there to help manage but they can NOT tell a HOA what to do. It's a sign of lack of competency of the board if they depend on a management company for the answers and action. It's like hiring a secretary, and the secretary telling you what to do. Who does that? A secretary is a PAID employee that is there to help assist and organize, NOT to do the job.
Now, there are situations where the MC are in control. That's because many developers who are still in control of the HOA hire MC's to handle their issues. If you are still under the builder's control then a MC may very well be present. However, if the HOA is under direct homeowner control, the MC is to assist not control. The homeowner's are responsible to create and live by the rules they want to enforce. Hence, why the owner's are all in association with eachother!

Mellisa, please be more careful on what you are posting. As the co-owner and COO of a management company I must correct your statement "The last time I checked, the MC is a HIRED contractor hired by the BOD." The MC is not a contractor - the MC is an AGENT. There is a significant difference! The Board and the MC enter into a Management Agreement which authorizes the MC to perform certain duties on behalf of the association. The Board selects the MC to utilize and they work as a team in a properly structured HOA. One important function of the MC is to provide guidance to a Board.

A good managing Agent is a highly trained professional. They do send out letters, but that is only one minor part of most Management Agreements. Your comparision to a Secretary is not appropriate unless the HOA hired a secretary as their AGENT to do certain duties such as send out letters. In which case the secretary does those duties, not the Board.

I did say OUR HOA's rules are as such. I did NOT say ALL HOA's are the same. So don't judge that what I am saying is not accurate. It is for OUR HOA. In OUR HOA we have a bookkeeper who was hired contractor to do handle the billing and send out notices if we so requested. Since we could fire and hire another bookkeeper at any time, I didn't consider them a source of "management". I considered the board the source of management. We the homeowner's managed OURSELVES and did NOT require nor need the use of a management company.
Sorry if I offended people that are part of a management company. However, my HOA never required the services of one and liked it that way. It is completely possible to run a HOA without a MC. It just may be better for some HOA's to have one. To each their own.

ALL -
First, many thanks for the vast information that everyone has sent me in regards to the issues I have here. As a first time home owner/HOA member/HOA President, I find it extremely helpful in any and all comments you have sent, my wife and I 'Thank You' for this.

Up-date - as you are aware, we have just 3 Town homes in our association: One sits vacated due to foreclosure, and the other is ignoring any and all requests for payment of the annual assessments and has not paid the 2006-2007/2007-2008 years.
I understand that the vacated one is a goner in regards to getting reimbursed for their premiums. I did talk to the bank which now owns the property and they did say that they will pay me the pro-rated difference from when they took over the property till the due date of this years annual assessment, but in regards to the 2007-2008 premiums, they would pay when the house sells, whenever that will be.

About 6 months ago I held a HOA meeting to discuss some issues and to also appoint a President for the association. Of course the other two owners didn't bother to show up so I elected myself President.

Now, my question is:
I understand that as the President of the association I can file for a lien on the properties. I went to our local county recorders office asking for the right forms in order to do so and they told me they couldn't give me that info and suggested I contact an attorney or a MC to do so.
Does anyone who lives in CA know what forms I must fill out to file a lien on the property?
I live in the County of Ventura, if that helps.
Money is tight for us (my wife and I are now the only paying owners in this association and we have been paying everyone's share) and even though I am not even 40 yet, I have been diagnosed with cancer so, there are certain things I rather be spending my time doing (like being with my young children) then dealing with this, so we just don't feel it is right that we need to pay again, but we also understand what will happen if we don't.

Again, thanks for your input into our 'little mess' we have.

Michael

Thanks again for everything

1365.1.(b) At least 30 days prior to recording a lien on an owner's separate
interest, the association must provide the owner of record with
certain documents by certified mail, including a description of its
collection and lien enforcement procedures and the method of
calculating the amount. It must also provide an itemized statement of
the charges owed by the owner. An owner has a right to review the
association's records to verify the debt. (Section 1367.1 of the
Civil Code)