what would u do?

Started by JimR24 • 36 replies • 1938 views

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JimR24 (Texas)
Posts: 399

Posted:

What would u do if you were a board member (i.e. how would u vote?) if a violation condition was misrepresented by an officer of the board and also the chair of a committee?

The situation involves a structural change to the common area which (according to most interpretations) violates one of our condo rules. Both individuals admit to the misrepresenation and the homeowner has written a letter stating that she feels she should be allowed an exceptance - because information was misrepresented to her.

An upcoming vote will be whether to issue a violation letter to his homeowner. I am a board member who is on the fence on this issue - and can use some help. What do u think?

What would u do?

Thanks!

oljim, in texas

Lovin' life with my honey!
and, President of HOA in Texas

GenoS (Florida)
Posts: 4,276

Posted:

Who is 'u'?

AnnH5 (Florida)
Posts: 304

Posted:

If the Board made a structural change to a common area that is in violation, the Board needs to correct the violation.

JimR24 (Texas)
Posts: 399

Posted:

u is you...lol.. ;-)

Quote:

Posted By GenoS on 06/16/2015 7:52 PM
Who is 'u'?

Lovin' life with my honey!
and, President of HOA in Texas

JimR24 (Texas)
Posts: 399

Posted:

It was the homeowner who made the structural change to the common area - not the board. Sorry if i didn't that clear.

Quote:

Posted By AnnH5 on 06/16/2015 7:58 PM
If the Board made a structural change to a common area that is in violation, the Board needs to correct the violation.

Lovin' life with my honey!
and, President of HOA in Texas

NpS (Pennsylvania)
Posts: 4,216

Posted:

1 Do you think that a HO should be able to rely on a statement made by a board member?

2 Was there an opportunity to notify the HO of the violation when it was first discovered and before the HO spent any more money to complete the project?

3 Why was the HO making structural changes to a common area element?

4 Is there a safety issue involved, or it it just the physical appearance that's the basis for the violation?

5 If the HOA wants it changed, is the HOA willing to pay some of the cost to make the change?

6 How expensive would it be to make the change?

Sikubali jukumu. Read all posts at your own risk.

JimR24 (Texas)
Posts: 399

Posted:

Great questions NpS - here is more information:

- in a perfect world, it seems as though a homeowner should be able to rely on a statement by a board member. Another complicating factor is that this homeowner is relatively new - having lived in our community for about a month or so. Evidently had not read our rules yet and relied on someone she felt was an authority figure.

- the HO had completed the structure when the violation was discovered

- no safety issue involved, just physical appearance

- having the HOA pay the cost to make the change has been brought up for discussion, but was this opposed by 2 of the 5 board members - with the remaining 3 being non-committal

- i'd guess that the cost to make the change would be over $500 but less than $1000

Thanks for the help!

oljim, in texas

Quote:

Posted By NpS on 06/16/2015 8:15 PM
1 Do you think that a HO should be able to rely on a statement made by a board member?

2 Was there an opportunity to notify the HO of the violation when it was first discovered and before the HO spent any more money to complete the project?

3 Why was the HO making structural changes to a common area element?

4 Is there a safety issue involved, or it it just the physical appearance that's the basis for the violation?

5 If the HOA wants it changed, is the HOA willing to pay some of the cost to make the change?

6 How expensive would it be to make the change?

Lovin' life with my honey!
and, President of HOA in Texas

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By JimR24 on 06/16/2015 7:50 PM
What would u do if you were a board member (i.e. how would u vote?) if a violation condition was misrepresented by an officer of the board and also the chair of a committee?

This is why we encourage pictures of the issue (to also be included in the minutes) and, if time permits, every Board member to independently take time to look at the issue in person prior to any decisions.

Quote:

Posted By JimR24 on 06/16/2015 7:50 PM

Evidently had not read our rules yet and relied on someone she felt was an authority figure

If the authority figure was a member of the Board or of the approving committee, then there is an expectation from the members that the information was solid (which is why we tell our Directors, Officers and Committee members to respond with - that is something the Board/Committee must decide on. I'll make sure its' on the agenda for our next meeting.

Quote:

Posted By JimR24 on 06/16/2015 7:50 PM

having the HOA pay the cost to make the change has been brought up for discussion, but was this opposed by 2 of the 5 board members - with the remaining 3 being non-committal

Member pay - 0 yea, 2 nay, 3 abstain. Motion fails and member does not pay.

Of course, if it was just a discussion and not a vote, then you need to take a vote.

My suggestion, since there was an issue on both sides, is to consider splitting the cost along with developing some internal controls to keep this issue from happening again.

Tim

NpS (Pennsylvania)
Posts: 4,216

Posted:

7 Do you have a formal process for approving changes and was it followed? If not, where was the breakdown?

Sikubali jukumu. Read all posts at your own risk.

JimR24 (Texas)
Posts: 399

Posted:

Good thinking Tim and Nps. I believe that our process for getting information out and approving things definitely broke down. I also believe it was also a memory lapse by the two individuals who said the change was okay - and, if they had it to do over again, they would have handled the matter differently.

Because they are both authority figures in our community, i am sure (if i had been in the homeowner's shoes) that i'd have done much the same thing as the homeowner - in terms of getting the impression that what i was doing...was okay.

I believe that our Association bearing the cost of the job (to do over) makes sense - since the Association (and its process) appears to be the one at fault...not the homeowner.

Thanks for helping me think this thru!

oljim, in texas

Quote:

Posted By NpS on 06/16/2015 8:42 PM
7 Do you have a formal process for approving changes and was it followed? If not, where was the breakdown?

Lovin' life with my honey!
and, President of HOA in Texas

CyrstalB (Maryland)
Posts: 457

Posted:

If the HO claims she was given bad info from a board member, has that in fact been verified by the board members who said it, or is it a case of he said she said? I like Tim's suggestion, both are at fault, so both should pay to fix it. The board member(s) need to feel the consequences of their actions as does the HO.

JimR24 (Texas)
Posts: 399

Posted:

Good question Cyrstal. The homeowner was provided the information by an officer of the board and a committee chair. Within our condominium, it is possible to have an officer whom is not a board member. We have five board members and two officers (non-voting). None of the board members were involved in the misrepresentation. Only the officer and a committee chair were involved in the misrepresentaton.

And yes, both the officer and the committee chair have admitted that they were involved in the misrepresentation. They were straight-up honest about it and have admitted that they were in error.

So, to make a long story short - it appears that both the Association is somewhat culpable (because of the misrepresentation by an officer and a committee chair) and the homeowner is somewhat culpable (because she did not check our governing documents first before making the change). Course now, the culpability of the homeowner is somewhat impacted by the fact that she was new to our community - and, had moved in only about a month before the change took place.

What do ya'll think?

Interesting stuff...huh?

oljim, in texas

Quote:

Posted By CyrstalB on 06/17/2015 4:06 AM
If the HO claims she was given bad info from a board member, has that in fact been verified by the board members who said it, or is it a case of he said she said? I like Tim's suggestion, both are at fault, so both should pay to fix it. The board member(s) need to feel the consequences of their actions as does the HO.

Lovin' life with my honey!
and, President of HOA in Texas

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jim

What was the change made?

JimR24 (Texas)
Posts: 399

Posted:

Hi John - the homeowner built a small fenced-in area with material which is inconsistent with what our governing documents say. She was led to believe that she could build a small fenced-in area with any material she wanted; however, our governing documents are somewhat specific in saying what materials could be used.

Course now, some of the opinions here are saying, if we are not specific in detailing what materials can be used for each homeowner's fenced-in area, that we'd be opening the flood gate for others who'd build in a fenced-in area with barbed wire fence material or bed posts..lol...

oljim, in texas

Quote:

Posted By JohnC46 on 06/17/2015 6:05 AM
Jim

What was the change made?

Lovin' life with my honey!
and, President of HOA in Texas

EllieD (Vermont)
Posts: 446

Posted:

JimR24,

You wrote Common Area – did the change involve "true" common area or perhaps Limited common area?

JimR24 (Texas)
Posts: 399

Posted:

Hi EllieD - the fenced-in area is what we commonly refer to as common area. This small area in the back of the home can be converted to limited common area if the homeowner requests it and the board approves it. Normally when the area is fenced-in, the area becomes limited common area which the homeowner has to maintain themselves.

Thanks!

Quote:

Posted By EllieD on 06/17/2015 6:45 AM
JimR24,

You wrote Common Area – did the change involve "true" common area or perhaps Limited common area?

Lovin' life with my honey!
and, President of HOA in Texas

KerryL1 (California)
Posts: 14,550

Posted:

You're right, Jim, this is a very interesting case!

Imo, the first thing is to bring the owner into compliance, i.e., have a fence built out of materials per your docs.

So the question is: who pays?

It seems to me that the H/O must share in the replacement cost, but perhaps 1/2 is too much given she surely believed that your HOA's leaders advised her correctly.

On the other hand, why should all owners--your entire HOA--pay for an officer & a committee chair's deeply flawed advice to the H/O? I'd resent that even if my "share" was small.

Should the board vote to ask each of the three to pay something? 1/3 perhaps?

Should your board vote to have your O & D insurance pay for consequences of the bad info?

I'm puzzled how there were 5 votes when two of the officers may not vote because they aren't directors? I believe that only three of you should vote on all HOA business and the two non-director officers. They don't abstain; they shouldn't vote at all.

Directors who are permitted to vote should rarely abstain. It's the board job to make decisions.

Meantime, your board should reaffirm that only the board may be consulted about these matters and that all individual directors, officers & comm. members need to keep their mouths shut and urge H/O's to follow to correct procedures. In this case, though not much $$, you can see how your officer & comm. chair's mistake could actually lead, however unlikely, to the H/O seeking compensation from the courts if she's forced to pay to re-do the whole job.

Are you a director, Jim? (Our bylaws also permit officers to serve who aren't directors, and once someone served as our treasurer for a few months before she agreed to serve as a director too.)

JimR24 (Texas)
Posts: 399

Posted:

Yes, seems as if the thing to do it to have the fence built out of materials per our docs. And yep, it appears that the Association is definitely culpable for the misrepresentation.

Kerry, your comment about other homeowners within our condominium having to pay for the misrepresentation is certainly well-taken. I have always felt that those responsible should pay; however, those who make mistakes out of lack of memory of exactly what governing documents say...sheds a different light on the subject. Although i have been a director for our association for over 4 years now, i have to admit myself that i don't always remember precisely what our governing documents say in detail...especially at my age.

The volunteers who made the misrepresentation evidently had a lack of memory. It's difficult to fault volunteers who are doing the best they can under the circumstances. Oftentimes, volunteering for a homeowner's association is not for the faint of heart...lol...

Thanks to all of you for your helpful consideration!

oljim, in texas

Quote:

Posted By KerryL1 on 06/17/2015 1:45 PM
You're right, Jim, this is a very interesting case!

Imo, the first thing is to bring the owner into compliance, i.e., have a fence built out of materials per your docs.

So the question is: who pays?

It seems to me that the H/O must share in the replacement cost, but perhaps 1/2 is too much given she surely believed that your HOA's leaders advised her correctly.

On the other hand, why should all owners--your entire HOA--pay for an officer & a committee chair's deeply flawed advice to the H/O? I'd resent that even if my "share" was small.

Should the board vote to ask each of the three to pay something? 1/3 perhaps?

Should your board vote to have your O & D insurance pay for consequences of the bad info?

I'm puzzled how there were 5 votes when two of the officers may not vote because they aren't directors? I believe that only three of you should vote on all HOA business and the two non-director officers. They don't abstain; they shouldn't vote at all.

Directors who are permitted to vote should rarely abstain. It's the board job to make decisions.

Meantime, your board should reaffirm that only the board may be consulted about these matters and that all individual directors, officers & comm. members need to keep their mouths shut and urge H/O's to follow to correct procedures. In this case, though not much $$, you can see how your officer & comm. chair's mistake could actually lead, however unlikely, to the H/O seeking compensation from the courts if she's forced to pay to re-do the whole job.

Are you a director, Jim? (Our bylaws also permit officers to serve who aren't directors, and once someone served as our treasurer for a few months before she agreed to serve as a director too.)

Lovin' life with my honey!
and, President of HOA in Texas

TimB4 (Tennessee)
Posts: 21,062

Posted:

Jim,

With all the info that you have provided, I agree that the mistake is the Associations.

Therefore, in reality, the owner would only be allowed to collect damages, which (in this case) would be no more than the amount they spent to put the fence in.

You may want to simply say that the Association will spend up to the amount the member initially spent on the fence installation (materials and labor) and if the replacement fence costs more, the rest is on the owner.

Obviously, the owner will need to provide a copy of their invoice/contract so the cost can be determined.

JimR24 (Texas)
Posts: 399

Posted:

Hi Tim - i believe that is an excellent idea. I like the way the costs are split.

In my humble opinion, there's a little bit of wrong on several accounts. The Association reps (the two volunteers) were wrong for the misrepresentation; however, to financially penalize other homeowners for the actions of two volunteers doesn't seen right. To financially penalize the volunteers (who are wanting to freely contribute to our community) doesn't appear appropriate either.

The homeowner (despite being told wrong) has some culpability in that - when all is said and done - it is her sole responsibility to follow the governing documents. She agreed to this when she signed the deed to her condominium...regardless of new she is to our community.

Sure do appreciate everybody for helping think this through. I will be sharing some of your thinking with the other board members. I sure do enjoy participating and reading all the dialog on this message board.

Thanks!

oljim, in texas

Quote:

Posted By TimB4 on 06/17/2015 4:31 PM
Jim,

With all the info that you have provided, I agree that the mistake is the Associations.

Therefore, in reality, the owner would only be allowed to collect damages, which (in this case) would be no more than the amount they spent to put the fence in.

You may want to simply say that the Association will spend up to the amount the member initially spent on the fence installation (materials and labor) and if the replacement fence costs more, the rest is on the owner.

Obviously, the owner will need to provide a copy of their invoice/contract so the cost can be determined.

Lovin' life with my honey!
and, President of HOA in Texas

GlenL (Ohio)
Posts: 5,491

Posted:

Providing the fence is not too far out of compliance i.e. barbed wire vs chain link, IMHO the Board should allow it with the caveat (signed and agreed by both the H/O & the Board) that it must be brought into compliance when the fence is replaced or if the property is sold. I would then in a newsletter article or direct mail let everyone know in general terms that an error occurred due to persons who were not authorized to do so giving a verbal OK to the project and remind H/Os that going forward that only approval in writing is valid.

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

JimR24 (Texas)
Posts: 399

Posted:

Excellent Glen - thanks sooo much for the suggestion!

oljim, in texas

Quote:

Posted By GlenL on 06/18/2015 2:33 PM
Providing the fence is not too far out of compliance i.e. barbed wire vs chain link, IMHO the Board should allow it with the caveat (signed and agreed by both the H/O & the Board) that it must be brought into compliance when the fence is replaced or if the property is sold. I would then in a newsletter article or direct mail let everyone know in general terms that an error occurred due to persons who were not authorized to do so giving a verbal OK to the project and remind H/Os that going forward that only approval in writing is valid.

Lovin' life with my honey!
and, President of HOA in Texas

KerryL1 (California)
Posts: 14,550

Posted:

Yes, I think Glen's advice is the best and he's right--it's crucial to let all HOA members know that approval must be in writing from the Board.

JimR24 (Texas)
Posts: 399

Posted:

Yep Kerry - i believe you are on target with your statement. Thanks for your response!

Quote:

Posted By KerryL1 on 06/18/2015 3:20 PM
Yes, I think Glen's advice is the best and he's right--it's crucial to let all HOA members know that approval must be in writing from the Board.

Lovin' life with my honey!
and, President of HOA in Texas

AnnH5 (Florida)
Posts: 304

Posted:

If you allow the one homeowner to keep the fence as is, even if it is the fault of the Board members, and at the same time tell all other homeowners that they can not have the same fence, you have possibly created a selective enforcement issue. Arbitrarily changing the rule for one owner to cover a mistake made by Board members is not the right thing to do.

If the Board members did the wrong thing, and there is now a financial price to be shared by all members, then so be it. The members elected the Board and entrusted those individuals to uphold the restrictions. That is the wonderful part of belonging to a HOA. As an owner, you are entrusting others to make decisions for you and if they make the wrong decision then you are still responsible for paying it.

If the Board members who made the bad decision are truly honorable and don't want to make the other owners pay for their own bad decision, there is no reason why they can't offer to pay out of their own pockets. At the end of the day, that would be the right thing to do. However, I doubt that they would offer or else we wouldn't have this post.

Another option is for the Association to vote on a change in restrictions so as to allow the fencing material that was used. If it passes, then everything is hunky-dory. If it doesn't then the HOA should pay for their mistake.

JimR24 (Texas)
Posts: 399

Posted:

Thanks Ann - for your comments. Excellent!

jim

Quote:

Posted By AnnH5 on 06/18/2015 5:18 PM
If you allow the one homeowner to keep the fence as is, even if it is the fault of the Board members, and at the same time tell all other homeowners that they can not have the same fence, you have possibly created a selective enforcement issue. Arbitrarily changing the rule for one owner to cover a mistake made by Board members is not the right thing to do.

If the Board members did the wrong thing, and there is now a financial price to be shared by all members, then so be it. The members elected the Board and entrusted those individuals to uphold the restrictions. That is the wonderful part of belonging to a HOA. As an owner, you are entrusting others to make decisions for you and if they make the wrong decision then you are still responsible for paying it.

If the Board members who made the bad decision are truly honorable and don't want to make the other owners pay for their own bad decision, there is no reason why they can't offer to pay out of their own pockets. At the end of the day, that would be the right thing to do. However, I doubt that they would offer or else we wouldn't have this post.

Another option is for the Association to vote on a change in restrictions so as to allow the fencing material that was used. If it passes, then everything is hunky-dory. If it doesn't then the HOA should pay for their mistake.

Lovin' life with my honey!
and, President of HOA in Texas

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

I as President did an OOPs similar to what the Board Members mentioned in the original post did. I told a new owner it was okay for her to build storage compartments in her garage space as long as they did not extend further than 3 feet from the wall. (No structural change was involved)
Although I had read our documents many times before I told her this I had not read them recently.
When I was studying the documents again I was where this is not allowed without a vote of the members. Fortunately, it did not cost the Association a penny and no one has complained about it yet so I am just letting the sleeping dog lie for now.

AnnH5 (Florida)
Posts: 304

Posted:

The key word is "yet". Nobody has complained about this "yet". What happens when someone else wants the same thing? Do you tell that owner no, it isn't allowed in the restrictions but it was ok for the other owner to because I goofed?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JimR24 on 06/16/2015 8:35 PM

I'd guess that the cost to make the change would be over $500 but less than $1000

Spend the money and quit bickering. If someone files a lawsuit against someone else you will easily spend ten times that much. Do it, learn from the mistake, and move on.

JimR24 (Texas)
Posts: 399

Posted:

Yep Larry - i'm thinking that's exactly what we need to do; however, i have only one vote. Gonna be interesting to see what we end up doing here. Will try to remember to let everybody know once a decision is made.

Thanks everybody!

oljim, in texas

Quote:

Posted By LarryB13 on 06/20/2015 7:40 PM

Posted By JimR24 on 06/16/2015 8:35 PM

I'd guess that the cost to make the change would be over $500 but less than $1000

Spend the money and quit bickering. If someone files a lawsuit against someone else you will easily spend ten times that much. Do it, learn from the mistake, and move on.

Lovin' life with my honey!
and, President of HOA in Texas

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By AnnH5 on 06/20/2015 6:52 PM
The key word is "yet". Nobody has complained about this "yet". What happens when someone else wants the same thing? Do you tell that owner no, it isn't allowed in the restrictions but it was ok for the other owner to because I goofed?

Most documents have a clause that state, just because someone else did it does not give you permission to do it.

JimR24 (Texas)
Posts: 399

Posted:

That would be an excellent clause to have in governing documents Crystal; however, our documents are silent on this. Excellent food for thought - thanks!

oljim, in texas

Quote:

Posted By CyrstalB on 06/21/2015 6:14 AM

Most documents have a clause that state, just because someone else did it does not give you permission to do it.

Lovin' life with my honey!
and, President of HOA in Texas

GlenL (Ohio)
Posts: 5,491

Posted:

Jim, the clause Crystal is referring to is often called the waiver clause and is pretty boilerplate language for CC&Rs. From our docs: No covenants, restrictions, conditions, obligations or provisions contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

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

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By CyrstalB on 06/21/2015 6:14 AM

Most documents have a clause that state, just because someone else did it does not give you permission to do it.

Our documents do have this clause although worded a bit differently but means the same thing that just because someone else did it does not give you permission to do it.
Also when we vote on amending our documents, I would like to include a clause that allows everyone who wants to build storage compartments in their garage space to be able to do so. We just haven't heard back from the lawyer on the wording and legality of amendments we want to propose.
The storage compartment looks neater that some of the other ways items are stored in the garage spaces. We do not allow any storage to extend more than 3 feet from the wall.

JimR24 (Texas)
Posts: 399

Posted:

Thanks Bonnie and Glen - i'll be discussing this possible change to our governing documents with the other board members. Excellent advice - thank you!

oljim, in texas

Lovin' life with my honey!
and, President of HOA in Texas

KerryL1 (California)
Posts: 14,550

Posted:

(Sorry to get off track: Bonnie, before you even consider permitting "storage lockers" in their individual garage spaces, ask your local fire marshall to visit to see if lockers would be permitted.) I you'd like feedback on this topic, please start a new thread.

Yes, 'olJim, let us know how this turns out.

JimR24 (Texas)
Posts: 399

Posted:

Yes will do Kerry. So far, the mood has been to kick-the-can-down-the-roard....with reluctance to do much of anything at this time unless someone presses the issue. I'll try to remember to let ya'll know what happens eventually.

Thanks for all the advice and comments everything! As of today, I think i've figured out what my position is gonna be on this. Course now, i may feel differently tomorrow...lol....

oljim, in texas

Quote:

Posted By KerryL1 on 06/21/2015 7:37 PM
(Sorry to get off track: Bonnie, before you even consider permitting "storage lockers" in their individual garage spaces, ask your local fire marshall to visit to see if lockers would be permitted.) I you'd like feedback on this topic, please start a new thread.

Yes, 'olJim, let us know how this turns out.

Lovin' life with my honey!
and, President of HOA in Texas

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