How to deal with a Board that does not follow by-laws

We have a very small assocation - 12 homes on a court. Four of the homes are located on the "circle", the remaining 8 on the street leading to the circle. Per the master deed, there are 3 common elements: the circle, a detention pond located between 2 homes on the circle, and a berm the runs behind 2 homes on the circle (and borders a road). The BOD is comprised of 4 members from homes who reside along the street. The only common element regularly maintained is the circle (it is cut weekly and sometime watered - usually upon request.) When those on the circle ask that the common elements be maintained (e.g. detention pond cleaned, berm watered / weeded / cut), they are told by the BOD "it doesn't bother me or I don't see it," so consequently, they go unmaintained. The two homes on the berm went to the City many years ago and had the City issue a letter stating that the berm was HOA common element property and the HOA needed to maintain. The 8 homes along the street have ignored this letter and claim it is invalid. Consequently, the two homeowners let the berm go uncut and let the weeds go. I should also point out that the sprinklers on the berm are piped to the same set of sprinklers that water the circle. (So, I'm not sure how you claim the berm is the homeowner's responsibility.)

I am one of the 4 homes on the circle, yet do not border any of the common elements. However, I feel that because the Master Deed calls out the common elements, it is our obligation to maintain them. When the homes near the common elements put forth a vote, they can never win - simply because the majority (8 homes) live along the street and as mentioned before, do not believe in maintaining the common elements.

The four homes have also put forth their names to get onto the BoD to try to correct the issue, but again, can never get a majority of the vote (because we are only 4 homes). Many years ago, we had 2 of BOD members, but when the other 8 homes say that we were going to begin to charge for berm maintenance, they quickly submitted other names and voted our people out. This has been ongoing for 6 years now. We feel helpless and strong-armed because the board is doing what they please, and what is in their best interest. They completely ignore the by-laws, unless they support their viewpoint. When we try to use the by-laws to support our views, we are simply ignored or talked over.

Do you have any suggestions on how we can go about solving this issue?

Michelle

They are retention ponds where rain water drains to via storm drains and natural drainage. They are mandated by the local authorities and deeded to the association. As part of the deed, the association is obligated to maintain them and keep them in working order. Maintenance and "looks" can be two different things, but I suggest you start with the local controlling authority.

What catapults a dispute such as MichelleM4's from the run-of-the-mill "board not following the documents" problem into the more general "breach of contract" arena? Is this a nuanced and subtle distinction or do these specific facts trigger the transition to an action for breach of contract? How do the individual owners find themselves on the hook for this? Boards regularly do things they shouldn't or don't do things they should. I'm really curious about what makes this case different, Larry, if you'd kindly elaborate a bit. And what would the plaintiffs sue for, an injunction to force the association to mow the berm once a week?

(I will reluctantly withold my newly discovered insight about how the owners would only be suing themselves and that they should look to their documents for the answers they seek since all the answers are there and how lawyers will only end up costing everyone money that doesn't really need to be spent.)

Tim,

Thanks for your response.

The facts appear to be that a majority of owners have chosen to ignore the mandates of their CC&R's by foisting maintenance of the common areas off onto the shoulders of those owners whose properties abut the common areas. (I say "appear" because I am not familiar with the OP's CC&R's.) The board has abused its discretion by relieving some members of the burden of maintaining the common areas while requiring other members to cover the expense themselves.

I also suggested having the lawyer send demand letters to each of the majority owners because they are apparently the ones who control the board and its policies and they each derive an economic benefit from the current setup. Basically, it gets down to either start paying for maintenance or pay your attorney, pay my attorney, pay the court, and then start paying for maintenance. Seems like an easy choice but some people like to do things the hard way.

Michelle M4 Michigan
If not done already you might find out which of Michigan's condo or platted subdivision laws apply to your community. Then look at the remedies available in applicable Michigan law if you want to do anything other than persuading the majority.

Whatever the factuals & whichever venue, you & the 3 inner court owners would also bear the obligation to prove whatever shortfall you claim exists in how the berm & pond are/are not being maintained to whatever standard you can prove is in your Declaration/governance documents /CCRs etc.

Some starters ? :

The Michigan Community Association Law Blog : Information on Condominium Associations and Homeowner Associations (HOA's) from the Michigan Condo Lawyers
http://micondolaw.com/

“Comparison between Michigan Site Condominiums and Platted Subdivisions (Homeowner Associations)”
http://micondolaw.com/michigan-hoa-law/comparison-between-michigan-site-condominiums-and-platted-subdivisions-homeowner-associations/

Thank you all for your valuable suggestions. My intention was to present the facts. Larry was able to read between the lines and pointed out that there is a large amount of personal bias in the decisions that are being made and that the majority is dumping on the minority. The 8 homeowners along the street are notoriously cheap, therefore, maintaining common elements that do not touch their property is not something they will even consider. They have been successful in holding onto the BoD seats for many years now, which gives them the power to make decisions which benefit their interests (even if they go against by-laws).

For nearly 10 years now, the 4 homeowners have tried to be neighborly to the others - using logic and the by-laws in an attempt to get the board to follow the rules. The homes that border the common elements have looked into maintenance, but at a cost of $1K just to clean up the existing areas, they are unwilling to foot the bill (understandably), for something that should be a shared expense.

We were trying to avoid hiring an attorney (because it will definitely deepen the tension we already have), but I feel that may be our only choice. As others have suggested, I will first start with the City, and see if they are able to settle this. If not, we have no choice but to hire an attorney. Such a shame.

Thanks again for your helpful suggestions.