3 Questions About AL 10A-3-2.03

Section 10A-3-2.03 of Alabama's Non-Profit Corporate Code is listed below.

The last sentence says that notice when mailed must be sent to each member's "address as it appears on the records of the nonprofit corporation."

My questions are simple.

1. Assume that a member notifies the corporation in writing that he wants his "record address" to be in Virginia. Under what circumstances can the corporation ignore his request and mail all notices for him to an address in Alabama instead?

2. If the member sued the corporation for not using his Virginia address as the "record address," what do you think the chances are that a judge would award him legal fees and costs?

3. Do you think that the corporation's D&O insurance would cover the corporation's decision to use the member's Alabama address instead of his Virginia address as his "record address", or could the individual directors of the corporation be personally liable?

NOTICE OF MEMBER'S MEETINGS.

Unless otherwise provided in the nonprofit corporation's governing documents, written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than 10 nor more than 50 days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting, to each member entitled to vote at the meeting. If mailed, the notice shall be deemed to be delivered when deposited in the United States mail addressed to the member at his or her address as it appears on the records of the nonprofit corporation, with postage thereon prepaid.

Tim

My goal is sharing knowledge - not shaming.

You and I sometimes differ on what laws have flexibility and what laws don't. This is a situation where I think that there is no flexibility in the law. Maybe you and others think that there is. I would like to know.

Perhaps you think that by choosing AL, that's targeting. I disagree:
1. I've cited the plain language of a state statute, not made a personal attack; and
2. As I've expressed elsewhere, my 3 questions can apply to the laws of any state. If you're somehow offended by my choice of AL, then below is the statute from my own state of PA.

I decided to start a new thread because I was tired of the bickering in another thread. The central issue of Due Process that I think is critically important to the integrity of every HOA was getting lost in the shuffle.

IMO it's inappropriate for you to find fault with my motives. Use PA law in your answer, or use VA law, or use the law of any other state. The issue is hugely important and should not be ignored.

PA 15 § 1702. Manner of giving notice.
(a) General rule.--
(1) Any notice required to be given to any person under the provisions of this subpart or by the articles or bylaws of any business corporation shall be given to the person either personally or by sending a copy thereof:
(i) By first class or express mail, postage prepaid, or courier service, charges prepaid, to his postal address appearing on the books of the corporation ...

Thank you for your response Melissa.

The questions I asked were specifically about the state statute on notice to members of a non-profit corporation. What's required and what's optional? How would a court probably rule? What would an insurance company probably do?

Different laws apply to foreclosures. I'm sure that those foreclosure laws require the newspaper publication and certified mailings that you mentioned.

Different laws apply to what needs to be recorded at the registry of deeds.

It could be that your HOA does satisfy the notice requirements of the non-profit corporation act.

But my questions aren't about the foreclosure laws or the recording laws or what your HOA does.

My questions are much simpler than all that: What notice does the non-profit corporation act require and are there consequences if you don't comply?

OMG!!! You are in a HOMEOWNER's ASSOCIATION for crying out loud!!! Good lord get the stick out already! It's a "club" where the ONLY requirement is to be an owner. Let's not over think the whole thing... It's NOT rocket science. You do the best that you can with the knowledge you have... That's it. Goodness gracious I made it 3 years without a lawsuit and alive... Must have done something right along the way... Maybe that also qualifies me to give FREE LIFE advice from living in/running a HOA. I don't have to quantify each and every decision I made. It's soooo over... Now I can provide some insight for those who were in my position when I had none. Just get over yourselves and chill... Your ruining the whole HOA positive advice experience for everyone and YOU all are NOT right all the time either! Good night!

Duh... You get sued or you do not get the money owed... Not that hard of a question to answer. I do not waste time on preventing being sued or worrying about it. We have insurance and no need in running a business that way. Your going to be threatened to be sued no matter what you do. Preventing or limiting risk is little benefit. It is all about the damages and making someone whole. Take it as an individual basis, learn and wait for real paperwork to show up. It rarely does.
So what happens if an HOA does not follow a rule? The same thing that happens to anyone else. It is just happens to a group as a whole. The job of the HOA board is to act as that whole and do the best job it knows how. If you can not face the consequence of a bad or insufficient result, then get out. It is going to happen... Deal...

In CA, NpS, as i noted on a different thread, Owners may per fairly recent legislation request that all communications from the HOA be delivered to two addresses. Forget about dramatic rarities, e.g., foreclosures, lawsuits, etc., just regular items such as ballots, rule changes, assessment billings, etc.

In an HOA like ours, where about 12% of our 200+ Owners have 2 or more residences, including here, this is a nice convenience. But, in fact, they need not even list their HOA address. In addition, about 30% of our owners are landlords. What good would HOA communication be if going solely to their tenants?

In a nutshell: in CA, HOA notices go to the address(es) that the Owners specify in writing to the HOA's agent, in our case the PM. The HOA Has NO choice in the matter. I don't what if any penalty could be involved, but I also can't imagine any HOA opposing this statute.

Civil Code §4040. Providing Notice or Delivery to Individuals.

"(a) If a provision of this act requires that an association deliver a document by “individual delivery” or “individual notice,” the document shall be delivered by one of the following methods:
(1) First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier. The document shall be addressed to the recipient at the address last shown on the books of the association.

(2) E-mail, facsimile, or other electronic means, if the recipient has consented, in writing, to that method of delivery. The consent may be revoked, in writing, by the recipient.

(b) Upon receipt of a request by a member, pursuant to Section 5260, identifying a secondary address for delivery of notices of the following types, the association shall deliver an additional copy of those notices to the secondary address identified in the request."

I can't interpret this from AL codes: items must be "addressed to the member at his or her address as it appears on the records of the nonprofit corporation." Does this necessarily mean the deed? Or can it mean on the record as requested by the Owner? In CA, per our HOA's practices, it mean the address requesteed by the Owner.

In SC:

Any written notice given by mail must be given by first class or certified mail sent to the last address of the member shown on the corporation's records.

Our PM says it is up to the owner to notify the corporation (HOA) of their correct mailing address. It is not the corporation's (HOA) responsibility to track them down.

We are pretty sure our mail address records are not up to date but we see no reason to spend the time/money assuring they are up to date.

Correct. The last know address and it does not have to be the HOA address. Just has to be the last address we have. Our PM guessed about 15% (20) are not an address within the HOA though some of them do live here, they maintain an different billing address.

Our dues are paid quarterly via bank lock box with a payment book sent out the 1st of the year. Our PM says no payment book has ever been returned as undeliverable. Somehow all are getting them. We have never had a case of not being able to track down an owner that I am aware of. The tricky one we had was chasing a long overdue assessments. It involved a rental, a sub-lease, an owner divorce, the unit as part of the divorce settlement, a remarry so a different name, a few moves, etc. but we (our collection lawyer) finally got that all straight and we found her. New name and new address and all.

If you were to attempt to mail something to me at my "HOA address" you would quickly run into difficulty. My HOA property is 40 acres of unimproved mountain land. I have no mailbox. One the roads adjacent to my property has an official name but because I have never applied for any building permits, the county has not assigned a street number to my parcel. The only "HOA address" would "lot 381, SVR." I don't think the postmaster is going to spend much time trying to figure out where the mail should be delivered; he will return it to sender.

My next door neighbor lives on his parcel full-time and has a street number issued by the county. Even with an official address, you still cannot send mail to his "HOA address" because there is no home delivery of mail in our part of the world. My neighbor has no mailbox, either. He, like most others living in our development, receives his mail through a post office box in town. If you do not have his box number then you cannot get mail to him.

?applicable?



!applicable!

Thanks for your thoughts gentlemen. I do appreciate your weighing in.

In my original question, I set the condition that the homeowner requested in writing that his Virginia address (not his HOA address) be used by the HOA as his "record address." Could the HOA ignore his request, or did he have the absolute right to choose where he wants to receive official HOA correspondence?

Due Process is a Constitutional right of every US citizen to notice and an opportunity to be heard before he can be deprived of life, liberty, or property. Without adequate notice, the opportunity to be heard is lost and Due Process does not exist. But who gets to decide where notice must be given? It's a simple question. And throughout the history of this country, the preservation or loss of legal rights has depended on it. So it's not something that I take lightly. I don't think anyone should.

By setting the condition that the homeowner made the request in writing, I tried to avoid anyone getting distracted from the central question: When the HOA is aware of 2 locations, and when the homeowner requests in writing which address the HOA should use, does the HOA have the option to deny his request?

The few statutes that you and I cited don't really answer that question. They simply state that the "record address" must be used, but they don't actually say who gets to decide which address is the "official" address. Apparently, CA has gone so far as to require the HOA to recognize 2 record addresses if the homeowner wants official correspondence sent to two locations. And while it may be overkill, it does protect both the HOA and the homeowner who splits his time between two locations. The CA statute makes things that much harder for the owner to claim "I never got it" (a.k.a. "my Due Process rights were violated.")

You've made an excellent point that the HOA cannot rely on a tenant to get mail to the landlord. You even gave the example of the HOA sending a complaint about the tenant to the rental unit address and the landlord never learning that the tenant had violated HOA rules. I agree that it would be incredibly ineffective.

There are also other deficiencies in sending notice to the rental unit address. All of the state statutes require that the notice gets mailed to a particular person - the "member". Sending the notice to a place that the "member" owns does not assure that the "member" who is supposed to get the message actually does. Also, "notice" is usually time-sensitive. What good is it to the owner if he has 10 days to respond, and the tenant holds it for a week before remembering to mail it off to the owner? The Due Process "opportunity to be heard" is lost - Not because it went to the wrong address - but because it didn't get to the homeowner in time for him to protect his property. The owner can make a very credible claim that "I didn't get it in time" and the HOA can't prove otherwise.

No fines can be assessed and no liens can be legally applied if the homeowner's Due Process rights were violated (Fines and liens are considered property deprivations by the courts). The burden of proof is on the HOA - not the owner. Of course, if the owner doesn't identify an address where he wants his HOA notices sent, the HOA has no obligation to find him. But once he puts the HOA on notice of the address where he wants his correspondence sent, it is the HOA's obligation IMO to follow that request or risk losing in court and getting turned down on D&O insurance coverage.

While it has no relation to the question I put forward, I will comment briefly on the foreclosure discussion because it does involve Due Process. The difference is that in the case of the foreclosure, other people's Due Process rights need to be protected. The newspaper ad and the posting on the door are notices to the world that they could lose rights that they have in the property. Maybe a contractor worked on the house - and he needs to know that he could lose his ability to file a mechanic's lien if he doesn't act now. A tenant who just ordered furniture might need to know that he could get evicted. All kinds of people could have rights and claims, recorded and unrecorded, that could be lost by a foreclosure. Some states allow a right of redemption. Mine doesn't. Every state has its own Due Process requirements when it comes to foreclosures - Sometimes to protect the homeowner and sometimes to protect others who may be affected. That situation is really quite different than the one I asked you to consider.

Tim, I must say that I was quite disappointed by your response. In all your postings that I've read, this is the only one I can remember where you disparaged someone's motives. There was no need for that. Was your intent to cut off other people's responses? I don't think it's your place to do that. Was your intent to protect someone? If anyone needs protection, it's the newbies who come to this forum for advice and don't know yet whose comments can be trusted and whose can't. I've seen many posts by many people warning newbies about one particular person. I know that these warnings come from a real concern that newbies might rely on blatant misinformation. Those warnings are particularly significant where that individual is the only poster here who uses a tagline to create an impression of special authority.

Due Process is a hot button of mine. I'll go head to head with anyone who wants to make light of it. I don't care who that person is. For me, it's not about the person - it's about the quality of the message.

Do I take shots at people? Sometimes. Usually it's people who ask if the way they were treated was "fair" - and then when they get a well reasoned response, they say "yeah, but was it fair" - and so on and so forth. To me those people aren't here to listen - they're looking for a place to rant or a way to twist a statute to their own perverse way of thinking. And I have little tolerance for them.

But what happens when the perverse way of thinking belongs to someone who's giving advice rather than someone who's asking for advice? The regular posters chime in to protect the newbie from being misled. I respect that. And I respect that this is how this forum remains open and accessible without censure.

You're the first person here who has made negative accusations about my intent. Considering my posting history, I don't think it was called for under these or any circumstances. In the future, if you have any doubts about my motives, please ask. I'd appreciate it.

Without question, I have the greatest respect for you personally and for the contributions you make to this forum.

I do think we experienced posters need to ALWAYS keep in mind that there potentially are folks new to HOA life or HOA governance viewing these posts. That's why it's so crucial, imo, that we regulars not make sweeping generalizations about any aspect of HOAs. To my mind, this is especially important when we're discussing topics that are subject to local or state laws.

These laws re: HOAs, or simply non profit corporation laws, vary tremendously between, say SC & AL and CA, AZ & FL. And there are a lot of states that fall in between those.

But I think all states have laws about due process, which is NpS' big point. Re: HOAs: in CA these are strict to protect homeowners.

I also like NpS' assertion that HOA documents refer to requirements for contacting "members" (Owners) not contacting their HOA address. Many of the language of Members are in bylaws re: notice requirements for board meetings (if any) and Members meetings. There also might be notice requirements in the bylaws or elsewhere about curing violations via invitations to hearings if owners don't comply. These are in our bylaws, but if they weren't they're in our CA Civil Codes.

PiTa, I'm trying to understand how SC Code SECTION 33 31 705. Notice of meeting relates to NpS' O.P about HOW--the method by which--Members must be notified, i.e., what methods of delivery of required notices are OK.

?And in your HOA, PitA, what about non-legal HOA notices. And what are "routine" notices?

Renters occupy 30% of our 200+ condos.

Our budget, reserves and other docs are several pages required at the end of each year in CA. While some Owners have opted to receive these online, why would our HOA waste postage, big envelopes and staff time stuffing & mailing them to renters IF the Owner haven't specified their addresses??

How property tax bills are delivered isn't relevant, it seems to me, because HOAs/non profit corporations/or by whatever name, have their own state legislation.

Remeind me, PitA which parts of Melissa's POVs are accurate?? Please use exact quotes.

Melissa's point of view often has merit. I don't agree with her all the time, but IMHO this site's wide variety of points of view would be diminished if she wasn't here.

I agree.

[quote]How property tax bills are delivered isn't relevant, it seems to me, because HOAs/non profit corporations/or by whatever name, have their own state legislation.