Nervous Board Lack of Volunteers No Action

Started by ScottG9 • 4 replies • 1574 views

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ScottG9 (Maryland)
Posts: 9

Posted:

When a BOD discovers that their By-Laws and Articles of Declaration and R&R do not comply with County Laws and are more restrictive in USE than the county and were written as a campground when the documents clearly spell out that we are under county code our property is a RV PARK with no county Restriction of Time in USE. Our By-Laws say we are closed in the months of December - February. However we are not open to the public because we are Deeded Lot Owners and Fee simply with the only restriction is RV USE by the county and state laws.

As a practice in years past we CLOSE our common areas for winter due to outdoor water lines but our RV units are self contained with water and sewage and we have dump station and a service that is contracted to service Lot Owners lots for a fee paid by the Lot Owners directly.

Getting to the part of enforcement is the part where people remain on their Lots through out the year and the Board has not enforced the Time Restriction in many years and when the Board tries to govern on some rules it is always the threat by the Lot Owner that if you are not enforcing Rule 3 ( as example ) then you can not enforce Rule 17 because of the accusation of selective enforcement.

Rules and Regulations can be amended as written in our By-Laws and Regulations but our current Board and past Boards feel they are opening themselves for a lawsuit and so the action of the Board is do nothing table the agenda to another day. It is very frustrating trying to convince the 4 BOD members ( which are the only ones year after year that volunteer) because they do not want a lawsuit and so they do nothing and just want people to go along to get along. We have no budget for legal issues which I have also presented to our Budget committee. We have $1000 in our budget for this service but yet we can not get the Board to react in a positive direction for change.

We have rules but no teeth in them and we have strangers show up with their RV as Renters and these same Lot Owners are behind on the HOA fees and some even have liens on their lots. These strangers use our Common Areas and boat ramps and have no idea that the Lot Owner is not in good standing. Our rules hold the Lot Owner responsible but there is nothing in our rules saying a Renter / Guest can not use their Lot when this Lot owners is not in good standing or even a Lien has been placed on that Lot. This has our entire community upset and the Board is afraid to act fearing their is a Landlord / Tenant issue that we would be open our community up for legal action against our membership.

It is a thankless job and it is just an RV park which is not supposed to be anyone's primary resident. It is for recreational minded and not a mobil home park and a small percentage is taking advantage of a weak BOD and lack of strong Rules.

As one Board member said, if you don't like it SELL

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM

When a BOD discovers that their By-Laws and Articles of Declaration and R&R do not comply with County Laws and are more restrictive in USE than the county

One thing to remember is that being more restrictive than local ordinances, is allowed and is not being in conflict with those laws.

For example: Law says Grass must be no higher than 5 inches. HOA says grass must be no higher than 3 inches. The HOA is still in compliance with the law as the grass is indeed no higher than 5 inches.

However, if the HOA said the grass could be 12 inches high, then the HOA is in conflict with the law and, when there is a conflict, the law must be complied with.

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM

when the documents clearly spell out that we are under county code our property is a RV PARK with no county Restriction of Time in USE. Our By-Laws say we are closed in the months of December - February.

Again, this is not being in conflict with the County code. The County says you may stay all year. The CC&Rs (i.e. the contract everyone agreed to comply with) says that the property will only be available 9 months out of the year. As there is no conflict, the terms of the contract are what should be followed.

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM

Getting to the part of enforcement is the part where people remain on their Lots through out the year and the Board has not enforced the Time Restriction in many years and when the Board tries to govern on some rules it is always the threat by the Lot Owner that if you are not enforcing Rule 3 ( as example ) then you can not enforce Rule 17 because of the accusation of selective enforcement.

That thinking and argument would not withstand a legal challenge. Shame on the Board to not realize this.

Selective enforcement is a defense to an Associations enforcement legal action. Selective enforcement is claiming that the Association is trying to enforce a specific rule on you but not others who are also in violation of the same rule. If successfully argued, it does not prevent the Association from enforcing other rules on you.

From my understanding, the court could do one of the following:

a) Determine selective enforcement is not valid, you are in violation and need to comply (what the Association hopes for)

b) Determine selective enforcement is valid, you are in violation and need to comply and the Association must bring enforcement action against all others who are also in violation.

c) Determine selective enforcement is valid and until the Association brings action against everyone who is in violation, they may not bring action against you.

d) Determine selective enforcement is valid, additionally, since the Association failed to enforce the rule for x length of time, the rule is no longer enforceable (what the violator hopes for).

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM [emphasis added]

It is very frustrating trying to convince the 4 BOD members ( which are the only ones year after year that volunteer)

There you have it. Membership apathy is the real issue (not the Board).
Unless the members are willing to step forward and volunteer to be on the Board, the membership allows those who are willing to make the decisions that affect everyone within the Association.

Or to put it another way: Apparently this is what the members want as they are doing nothing to change it (i.e. recalling or simply not reelecting those individuals again - but that also requires them to step forward and be willing to do the work).

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM [emphasis added]

As one Board member said, if you don't like it SELL

To be honest, if one can not gather support from the apathetic membership and rally them to make the changes, then the only options are:

a) Live with it.
b) Sell and move on.

If you can gather support and rally the members, then changes can be made and things will get back on the correct course. This takes time and energy to do (when I did it in my Association it took over 3 years). However, the final choice is the membership.

You can only decide if you will get involved or not and, if not, if you will chose option a or option b.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By ScottG9 on 08/21/2015 3:53 PM
Getting to the part of enforcement is the part where people remain on their Lots through out the year and the Board has not enforced the Time Restriction in many years and when the Board tries to govern on some rules it is always the threat by the Lot Owner that if you are not enforcing Rule 3 ( as example ) then you can not enforce Rule 17 because of the accusation of selective enforcement.

What little law I have read regarding the claim of selective enforcement or selective prosecution is that an essential element of such a claim is that the enforcement is motivated by retaliation or animosity toward the party making the claim. The mere fact that some are prosecuted and others are not will not sustain a claim of selective enforcement.

Threatening a lawsuit is cheap. Pursuing one is prohibitively expensive; one can expect to spend about $20,000 to commence a lawsuit with no upper limit on costs and there is no guarantee of a favorable outcome.

Quote:

Rules and Regulations can be amended as written in our By-Laws and Regulations but our current Board and past Boards feel they are opening themselves for a lawsuit and so the action of the Board is do nothing table the agenda to another day. It is very frustrating trying to convince the 4 BOD members ( which are the only ones year after year that volunteer) because they do not want a lawsuit and so they do nothing and just want people to go along to get along. We have no budget for legal issues which I have also presented to our Budget committee. We have $1000 in our budget for this service but yet we can not get the Board to react in a positive direction for change.

A board member has a fiduciary duty to the association, meaning that he is required to always act in the best interest of organization. No one expects a board member to be a legal expert but when legal questions arise board members lacking a legal background have a duty to seek out qualified legal advice. Failing to do so is grounds for being sued for breach of fiduciary duty. Failing to raise sufficient funds to pay for legal advice is likewise a breach of duty and grounds for a lawsuit. The fear that someone somewhere someday might maybe possibly file a lawsuit is not a defense that I would want to assert, but it sounds like that is your board's position. Board members who sit on their hands out of fear that they might be sued personally are acting in their own personal best interests and not those of the association; a person who harbors such a fear has no place on the board of directors.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By LarryB13 on 08/21/2015 7:54 PM
A board member has a fiduciary duty to the association, meaning that he is required to always act in the best interest of organization. No one expects a board member to be a legal expert but when legal questions arise board members lacking a legal background have a duty to seek out qualified legal advice. Failing to do so is grounds for being sued for breach of fiduciary duty. Failing to raise sufficient funds to pay for legal advice is likewise a breach of duty and grounds for a lawsuit. The fear that someone somewhere someday might maybe possibly file a lawsuit is not a defense that I would want to assert, but it sounds like that is your board's position. Board members who sit on their hands out of fear that they might be sued personally are acting in their own personal best interests and not those of the association; a person who harbors such a fear has no place on the board of directors.

Nice speech Larry. Has it convinced anyone in your neighborhood to take his/her head out of the sand?

Sikubali jukumu. Read all posts at your own risk.

ScottG9 (Maryland)
Posts: 9

Posted:

Larry B

Thanks for your input! Good stuff !

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