Voting Rights Suspended Without Notice

I arrived at my HOA's (condo association's) Annual Meeting on January 16 to vote, listen, and possibly participate. When I went to register in the crowded hall, one volunteer looked up my name while another stood by my side. I signed in. I was then refused a ballot. The second volunteer hurriedly ushered me to the HOA's front office nearby. There the business manager informed me that I was not a member in good standing (MNIGS), and so my voting rights had been suspended. The grounds were that my fireplace inspection was overdue by ten days (last inspection, January 6, 2014) and so my voting rights were suspended. The HOA Rules require that all have their fireplace inspected for safety every two years and provide a certificate of same. I moved to this HOA less than a year ago. I had thought I was up-to-date on my fireplace inspection. I thought it was due sometime in December, 2016. I was wrong.

I was not given notice that the inspection was overdue and that I was MNIGS. The suspension of voting rights took me by surprise. I was embarrassed. I had sullied my own name. I felt my privacy had been invaded. I had wanted to vote. It's important to me. Yet the December newsletter had cautioned all members that this was one reason a member could have their voting rights suspended. I felt I was in the wrong, so I had to pay what I feel is a severe penalty.

Another member of the HOA staff urged me to stay for the annual meeting, to help make up a quorum. I was not sure whether, given my MNIGS status, I could be counted. Still I stayed, because I know it's hard for HOAs to get quorums. I know elections are expensive to re-run.

After the meeting, I looked up the governing documents to see when the Board could suspend voting rights. I figured the HOA had got everything correct, but on the contrary. The Bylaws have a lot of detail on the point. They state that voting rights may be suspended for a violation of the Bylaws, Declaration, or Rules and Regulations as long as (1) written notice of the alleged violation is served; and the notice states (2) that voting rights are the proposed sanction; but (3) an alleged violator could apply to the board for a hearing to challenge the alleged violation within ten days of receiving the written notice; and (4) if an alleged violator does not ask for a hearing, then the sanction will be imposed. A description of how the hearing is to take place follows. It's several thick paragraphs long. The Rules & Regulation also have a similar procedure for alleged violations, requiring the HOA to give written notice, offer a hearing, and so on.

I take responsibility for my blunder. But I do not think the punishment fits the crime. I do not appreciate my privacy being invaded and my name being sullied in front of several members.

I pay my assessment by the quarter, so the HOA has two months of my owed assessment in its coffers already. Others pay by the month. What kinda gets me is that those who are delinquent in paying their assessment get notice every month of their violation, with their billing statement.

I emailed the business manager the same day with my concern. I emailed the new board the next day. I heard back from no one. I looked up the governing documents procedure for filing a complaint of a violation of the Bylaws and Rules & Regs. I filed the Complaint properly at the business office. I alleged the business manager, previous board, and HOA had violated the governing documents when they suspended my voting rights. I described how those delinquent with their assessment get monthly notice of their violation, whereas no notice whatsoever is given to those whose fireplace inspection is overdue. I asked (1) to be permitted to cast my ballot; (2) that the business manager be instructed to follow the governing documents and give notice accordingly, particularly when the penalty for the violation is severe; and (3) for the next HOA newsletter to describe, without names, its mistake, apologize for it, describe why due process was important here (it's voting rights, and it's hard enough to get a quorum), and invite others who had been similarly wrongly treated to cast a ballot. The CPA who oversaw the election typically takes a few weeks to submit her final report, often with changes from the initial vote count, so I think this is do-able.

I suspect the HOA has been doing this for years. I loathe to say this, but if the HOA does not agree to my requests, I am thinking of seeking an injunction where a judge orders the HOA to follow their friggin' governing documents, and do not casually mess with voting rights. I know how to do it. It will take years. It will take energy. The HOA will have to use an attorney, costing all of us. It will make me enemies with the Board and business manager. I know how it hurts to be sued, having once been on a board and frivolously sued (everything thrown out, but it took two years) with a dozen others. But how many people has the HOA illegally denied votes in the last several years and subjected to embarrassment? I don't like it.

I have arranged to have the fireplace inspection. I still have no written notice et cetera of this violation, but I do not like breaking rules.

If anyone has any thoughts on this or has had similar experience, please share your counsel.

Hi Augustin,

Let me echo NP and welcome you to the forum as well.

I understand your frustration.

You may want to use your experience as a learning tool for the Association and make suggestions to correct these type of issues in the future. This could be done by letter or in person. I personally believe that a personal appeal may result in more action then a letter. Here are some suggestions you can offer the Board:

1) When the property is sold, have the date of all required inspections included in a property disclosure form OR include it as part of a welcoming package to new members. This simple step would have eliminated the issue you experienced.

2) Along with the meeting notice, encourage the Board to include notification to all MNIGS explaining the problem and the suspension of rights. As treasurer, I do this every annual meeting for our Association. For the cost of the letter and postage (about a $1) the member is informed of their status and, in some cases, the member chooses to fix the issue prior to the meeting thus reinstating their voting privileges.

Hi NpS and Tim,

Thank you for sharing your thoughts.

NpS, If I want to step this up, then I think we agree that, to see how many folks were illegally disallowed voting, a lawsuit and its discovery phase would be necessary. Thank you for putting to rest my thoughts on whether this situation is tinged with illegal defamation, infliction of emotional distress yada. You're right; one requirement of these claims is showing financial damages. Getting an injunction to stop the CPA from reporting the results will also require filing in court. To me, the cost-benefit of obtaining such an injunction is too small for this particular election. The election was not a close contest.

I think more often of what happens in the year when it is a close contest. Happens a lot. Hence my recognition that this is potentially a teaching moment, as Tim also proposed.

Tim, to me, how far I take this, in my effort to maximize learning, depends on what the new Board understands about the governing documents being a contract. I am not sure if I am dealing with a board that rules as if the HOA were their fiefdom. It's possible they realize (1) the importance of letting the Governing Documents run the HOA and (2) why the Governing Documents have these due process requirements. If the Board is rude, cackles about my desire to have my vote be counted, or does something naive like declare the governing documents "notice" requirements to be irrelevant to running the place, then I will likely step it up as mechanically and non-confrontationally as possible.

I agree that one solution to this situation is to send out to those MNIGS notification of same.

Much obliged,

Aug

Thank you, Bob, that helps. Also thank you for your second post, NpS. All your thoughts give me perspective. At the moment, if I get my 10 minutes with the new Board, I think I'll ask if they feel following the governing documents is important and why; do they think giving notice when there's a violation is important and if so, why; and would they like people to be eligible to vote in elections and cast their ballot or proxy for same, and if so, why. Then say thanks, nothing else wanted, bye. A part of me does not want to make their lives more miserable, with this thankless job they volunteered to do. I tend to think thee solution, as NpS kinda hinted, and as Bob kinda suggested, is to not bother voting. Stay at football field's length from management and the board. I wish I had not attended the annual meeting a few weeks ago. I am slowly but surely losing that Boy Scout attitude that one has a responsibility to vote. Have a nice rest of the winter, Aug

Tim, all that you wrote is valid. However, if you are a regular here, you have heard the following or similar before: Having previously served on the board of an enormous 1500 house HOA (a different one than that here); having been one of those many folks who, nationwide, manage to legally rid boards of directors maniacally, and in a fight with the city, letting weeds three feet tall grow on the enormous common grounds leaving the property looking terrible; having really turned the place around, including getting a good new board in place; having personally exculpated several directors from a lawsuit (the insurance co attorney dropped the ball); stopping the placing of an anti-government "Sovereign Citizens" movement of bogus liens, and overseeing lifting of same, on directors', past and present, homes on the market; having been out there on weekends getting the irrigation system running (no water = dying grass); having personally obtained a restraining order against a board harasser who was just on the cusp of being charged with criminal harassment; having fingered that the HOA was not in the red but very much in the black, because the new business managers had faulty software that spewed out numbers for ten months did not match the massive funds in the HOA checking account, then overseeing correction of the books; I am burned out. I'll go to the hearing, ask my questions, raise the issue of why indeed through the grapevine I now know that some 25 chimneys are overdue on inspection, and does this not raise a concern about whether, by not following notice procedures, we are impacting the safety and home values of all?; say but for the grace of god/the goodness of society, there go I, and let the directors figure (or not figure) it out. The numbers (directors who are buds with the business manager) are likely against me. I have other volunteer work I am doing now that has a lot more 'bang for the buck' [of my time].

I'll post an update in the coming months.

Had a chimney fire in one of our townhouses last night. Firemen couldn't find hydrant (under a mound of snow). No inspection requirement. Big wake-up call.

Augustine

Seems Tim has provided sound advice as is his habit. Perhaps the method used is more important than the subject matter.
Passive/aggressive approach my guess the new board could certainly do without some.

"Do you think following documents is important and if so why?" Seriously, how would you expect that to be answered? Myself I would find that insulting.
Surely, this board has more important things to do.

In fact partial responsibility for your inability to vote lies with you. Should you have been notified? My opinion yes. But making a simple suggestion to change a current policy might fall on more receptive ears then a Q&A about the principles of following guidelines.

Sounds like an unsolicited lecture when perhaps the policies in place were SOP before their service.

Any exchange with the board or any group should be handled on a respectful and equal level with maybe a small dose of appreciation for doing a job many can't be bothered with.

And FYI I have now served my community for 29 years. I am well past the point of burnout. I would list my accomplishments but that would require my finger tips be left with only bleeding stumps. While what you did was important in your former community it should not taint the efforts of those who are actually in the game working to do the job at your new residence. My guess working with them in an honest effort without pointing out their obvious flaws and failures might get you where it is you wish to go more easily.

Good luck.

MelissaP1 and NpS, thank you for sharing your specific experiences with fires in your HOAs. They are motivating, to say the least.

On an unrelated note, we had a fire in our community late last month and it's still boarded up, so you bring up a great point about having a timeline for repairs. I'll mention that to our board.

Now, regarding the subject of this conversation - personally, I think prohibiting someone to vote because he/she didn't get a fireplace inspection is heavy handed (not paying assessments is a bigger issue for me). If they didn't follow the processes listed in the CCRs, that's even worse (they may be playing hardball because they know they didn't and perhaps think if they stonewall you, you'll give up). You are proving otherwise, but it would be great if this can be fixed without going to court - as you said that costs time, money and everyone will royally pissed at everyone else, depending on what side they fall on.

You mentioned there were other homeowners who've had similar problems, so one option would be all of your getting together, attending a board meeting and demanding the board address this properly, perhaps consider a special meeting to review this part of the CCRs to see if it should be amended. There's also the recall process of the current board as a last step if they continue to be ornery - it'll take some time, but would be cheaper than court.

And speaking of court, would you be willing to take this to alternative dispute resolution? I don't know if you have a program in your community (there are certified mediators in some law firms). Alternative dispute resolution can allow everyone to calm down and make their case in front of a mediator who could work out a solution or render a decision (both sides would have to agree in advance to the outcome). Again, this could be a lot cheaper than going to court. If you've been discussing this with an attorney, ask if this could be an option for you.

Since I live in a townhouse community, I'm very interested in this topic.

1. If you've had a fire, does the local government get involved in forcing cleanup of debris?

2. What do you think is a reasonable time frame to require a house to be rebuilt?

3. Have you had any experience with insurance company payment delays that have caused things to bog down?

4. Do you know of any insurance an HOA like mine (homeowners responsible for insuring entire unit) can get as secondary coverage in case house isn't rebuilt within a reasonable time?

1.
NpS, when one quotes the gov docs in four places and also state law to support his or her complaint, and it's crystal clear voting rights have been unlawfully suspended, it is mechanical and not amazing. The problem is the typical HOA member tends to operate from the gut and from emotion until they get some training and experience in how the gov docs and state law control. If one cannot support one's argument with the latter, then there is zero reason to complain. (Providing suggestions on different ways of doing things, all complying with the law, is a different matter.) You make it sound like this is miraculous. The abundant law on contracts and HOAs is not to create Boards that are dictatorships, doing whatever the directors want, but to create Boards accountable to the gov docs and law. A good Board is the voice of the gov docs and is rather mechanical as a result (though a little charm and promotion of civility helps).

2.
The attorney wrote letters to each member listed as "not in good standing" in the logs for the election. The letters were similar to much of the letter I received: First, chastising the member, and then admitting the HOA made a mistake; here are ballots for you to vote by such-and-such date.

3.
I already responded to this. See above.

4.-7.
You're wrong. The letter was written by the attorney, on his law firm's letterhead, addressed directly to me and signed by the attorney. Go review the Rules of Professional Conduct for attorneys (a part of state law in I believe every state in the U. S.). We don't agree. Also I am not pleased, because in addition to other actions suppressing voting rights, the Board has retaliated against me. It took more action and threats on my part to remedy a severe invasion of my privacy. I will leave this for another discussion.

For your state, see http://www.pacode.com/secure/data/204/chapter81/s81.4.html . Then see Rule 1.13 (d), Rule 4.3, and Rule 8.4 (c), including the comments for each. Note also that Rule 4.1 Comment (1) states that an attorney has no affirmative duty to disclose relevant facts to an opposing party.

For some time, my current HOA's attorney has been sending long letters directly to unrepresented third persons who have filed a complaint. The letters are signed by the attorney. The letters give his "findings" and interpretations of case law and state law, with no disclosure. The attorney is misleading complainants to think that the complainants are his client, and so the voice of the law, when in fact under these circumstances, the complainants are not his client. The Rules I cite above explain how easy it is to mislead people under these circumstances, so an attorney with an organization (e.g. a HOA) as a client has to clarify under circumstances where there is obvious adversity between board and member-shareholder, especially when the latter are unrepresented. I was baffled for awhile at this practice of my current HOA's attorney. Then I remembered how the only time my former HOA's attorney ever wrote third person member-shareholders was when a simple letter of demand was needed (following up on the board's own letter of demand). These letters of demand were rarely needed. My former HOA's attorney avoided writing letters in general to the board. Instead, he gave them advice over the phone. In the cases where matters landed in court, then he moved into action, but was still sparse, communicating concisely but firmly as the courts expect.

Augustin

Please feel free to obtain opinions that conflict with mine from one of your pro bono lawyer sites.

Ahh Augustin.

It appears that this is the second time you have resigned from this forum - First as AugustinT and now as AugustinD.

I laid out my logic step by step using the rules you suggested. Your response is that I obviously didn't read the commentary. Of course I read the commentary. I just don't agree with your "it's in there if you had looked" explanation of just about everything.

You accuse me of mis-perceiving whether there can be "differing interests" - something that I never even discussed in my posts. Don't know how you can accuse me of something I never spoke about.

Your statement that "The commentary for each of the Rules explains this" is way too nebulous for me. I'm not a mind-reader.

No matter how many times you say otherwise, HOA attorneys do write letters on behalf of their HOA clients to adversarial homeowners every day of the week. I have never heard anyone but you say that it's an ethical violation if the homeowner is unrepresented. To me, it's absurd.

FYI, the HOA lawyer is not obliged to defend a director who has been accused of wrongdoing. Doing so would be a conflict of interest for the lawyer. When it reaches a certain point, the issue would be turned over to the insurance company who provides your HOA with D&O insurance. The insurance company lawyers will deal with the issue, not the HOA lawyer.

I never said that you had to show financial loss to make any headway - What I did say was "Makes your road ahead steeper when you can't show actual financial loss." World of difference between your description and my actual words. In that same paragraph, I also predicted that you weren't going to get the apology you wanted. I'll stand on both of my statements.

Then you close it all out by calling me a name. Very adult IMO.

Some people come here to rant. Some people come here to learn. One of my weaknesses is that I lose patience with the first group and do my best to help those in the second group. I won't miss you on this forum Augie. Best of luck elsewhere.

sorry for the typos : " . . .after merely protesting something they thoughT was legally improper. In one case the chastisement letter claimed more than $ 500 more !)

Augsutin D New Mexico.

1 Thanks & all worth the read. Not necessarily current day but show ethical minefield of a lawyer - having obtained a retainer and/or in an ongoing professional counsel relationship - daring to be potentially held to have stepped outside that retainer, daring to wear 2 hats by seeming to give counsel to someone with a potential or actual adverse position.

Which could get potentially tainted advice with germane information withheld. A biggy specially when one presumes an imbalance of legal skillsets & power.

The 1987 Michigan scenario - addressing general members pacifying ? at an open meeting potentially attended by adversarials - has a special voice. These seem to remind that once an arms-length counsel takes a high profile role - even in admitting the client was wrong & delivering the ballots with explanation - should carefully avoid appearing to step outside the retainered umbrella.

2 - In my jurisdiction there are difficult to prove possibilities that some lawyers are like claims sharecroppers. Lien threat letters with "Pay me $600 or I'll lien your title (whether you are blameworthy or not) " used to develop an income stream from the ( possibly unjustly ) accused rather than the client. ( a variation of dubious 19th century 'champerty/maintenance' : buying your claim on spec while not being an insurer making you whole again ). ie effectively outsourcing legal enforcement in return for an income stream. An invitation to abuse.

Good luck with your association.