liability question

CfD

I am not nor do I play a lawyer.

You said: One homeowner is stewing (not me) and considering suing the association for the cost of having their fence moved where he would have put it had he known that variances were permitted. Others have not been as vocal, but are clearly upset.

Who told him he had to put the fence where he did put it?

Who is to blame for him not asking for a variance other them himself for not asking?

Anybody can sue anybody else for just about anything. Prevailing is another matter entirely. That would be up to a judge to decide, and nobody here can predict how a given judge on a given day will rule.

That said, a lot of people "consider" or threaten to sue, for the large majority it's either just bluster, or they change their minds when they find out how much it will cost them.

Personally, I wouldn't be concerned about liability, but if enough people are upset with the current board, they should do something about it come election time. Fixing this problem via replacing board members in an election will be a lot cheaper than suing.

Completely agree about the transparency Shelia, but a few people are going to board meetings and raising this issue. They are being told what the ARC and board approve is all private, which is not only wrong but a violation of the law here in Virginia.

The policy is already there and homeowners sign on with it when they purchase their homes. The ARC committee is specifically tasked with making sure applications conform to our CC & R's and ARC guidelines. They docs actually say they are not to approve anything that violates any of the governing docs, but they have a very long standing policy of doing just that, and they'll tell you that. Additionally, our governing documents and state law are very clear about open meetings. Whether it is the ARC committee or the board approving these applications with or without variances, it should be done openly and recorded in meeting minutes somewhere.

It would be different thing if all of these variances were well publicized and available for homeowners knowledge. Then homeowners could easily see what has been approved in the past and perhaps add it to an application, or at least have an idea of what may get approved. But as it stands now, nobody knows anything. Homeowners look to the guidelines for...guidance! Most submit their applications to comply with the guidelines as they are written. And most have no idea that variances are routinely approved secretly. They should have that knowledge readily available to them.

In my view the unhappy fence homeowner has a case, but I'm no lawyer. Disagree with the notion that homeowners need to band together to "persuade" or beg a board to comply with our governing docs and the law.

While the board may not be open in their approval process (and I won't comment on that issue because I live in a state that does not require open meetings), they are being open about the fact that there is a long standing policy of allowing variances. And that will weigh in their favor.

CfD

You say they are issuing variances that violate your docs. Having been around a few HOA's (and on a few ARC's), I have yet to see a set of docs that covered every ARC request we saw. We always to "interpret" some and issue a ruling. It was rarely black and white.

Are you saying they have no right/ability to issue a variances? Every ARC/BOD I knew of had that right.

You make it sound like the variances are double, wax sealed secrets and purposely being withheld versus not all owners being publically notified of such. It this true?

Cf

The heading on your post said "liability." You asked about the chance of a lawsuit being successful against your board. I said in a prior post that IMO the lawsuit had zero chance of success. So to answer your question "where would it weigh in their favor" - the answer is a courtroom.

On the subject of weighing in someone's favor, there are several issues that have been raised:

1. The existence of a practice of granting variances even though the docs don't allow it. I think that this might weigh in the HO's favor, but only slightly. On the other hand, no board the I know of has a perfect record. No board that I know of hasn't granted variances. It's not a perfect world, and judges know it.

2. The existence of a long-standing practice of granting variances. The longer the practice continues, the more it weighs in the board's favor. Courts respect long-standing practices.

3. The board's open disclosure of a practice of granting variances. This IMO weighs most heavily in favor of the board. They are not hiding the fact that variances are granted. This is the original point that I was making.

4. The failure to disclose individual variances. I don't know about this one. I think it depends on the particular circumstances. I'm sure that others on this forum, have perspectives on this.

5. The fact that the association is a corporation. The standard by which any corporate board is measured is, in most cases, the Business Judgment Rule. The standard is NOT strict compliance with a set of documents. A court will weigh the BJR heavily in favor of your board.

Re: my HOA's practice of keeping variances out of the record -

1. We turn around architectural requests in 48 hours. We don't wait for meetings. The request comes in. If approved, the HO is notified, and the approval goes in the HO's file. Everything we have done for the last 18 months has been digitized.

2. We have unfortunately been through 3 MCs in the last 5 years and we may be changing again. We have boxes of files that we haven't been through that get passed from one MC to the next. While we would love to have this all put together and easily accessible, the honest truth is, it isn't.

3. The composition of our board changes. We handle variances a lot better than prior boards, but in some cases, we don't know what was done by a prior board. Yet we are accountable for trying to maintain consistency. That's not always easy.

4. We are building a record for future boards on every aspect of our HOA operations. Variances isn't one of our major concerns at the moment - No one in our HOA seems to be distressed by our current practices.

5. There's the issue of redaction. Some information cannot be disclosed to others. A skilled person would have to go through every piece of paper and make a determination. This can be time consuming and costly. Now if you asked me where I think we will be 3 years from now, I can say with confidence that we will have everything digitized and accessible. But for now, we've got what we've got.

CfD

You said/asked:

The board should certainly take up the variance applications at a properly noticed board meeting where homeowners can come see what is going on, and voice opposition to said application should they feel inclined. Board doesn't have to heed what any homeowner says in their consideration of the variance, but they must, at least according to Virginia law, have open meetings when making decisions and provide homeowners a chance to speak.

Do you disagree John?

Simple question. Simple answer. Yes I disagree.

I do not think homeowners can continually be looking over the shoulders of and advising a BOD. This is micro-managing at its finest. If they screw up, then replace them.

I also think such a process could seriously hinder things happening depending on how often the BOD meets. Might not be applicable in your case but I have seen sales dependent on getting permission/variances before the sale can close so timing could be an issue.

I am not familiar with VA law to know if an architectural change requires an open meeting to discuss. I would doubt it does, but I do not know. In SC the only thing that has to be open is our Annual Meting.

When I do not like something I will probably not agree with any procedure short of me getting my way. If I was really that upset, I would either suck it or slap a restraining order on their butts.

We can agree to disagree on this.

Thanks for the views Tim.

When you say guidelines are different, in what way do you mean?

VA law does require open meetings for all Board meetings and Committee meetings. Executive sessions are exempt but limited on what the sessions can be used for. Additionally, executive sessions must be entered from and return to an open meeting.

in our section there is a space for utilities to access if they ever need too, was told by the new developer we could only install it to that point., Utility company states other wise as long as it's movable/open able and their vehicle can pass through it's fine to continue the fence on out to the end of the property.

Feel free.

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