County Says New Pavilion to be demolished

For many years the Tennis Committee had complained that there was no "shaded area" for players or spectators to sit under to observe tennis matches. This past year a new slate of HOA Board officers was elected. It was clear that their agenda was to get a "shaded area" built for the tennis courts and other areas. That project was presented in March, along with an artists rendering and approx. cost of $17,000. In late April or early May construction started. With work about 85% done by July a "Stop Work" order was placed on the building/pavilion by the county. It appears that the building was never permitted by the county and it appears that the county has not inspected or signed off on any aspects of construction, foundation, structure, electrical, or the actual site (which the county said was on an easement, etc. The HOA board has been very quiet about this. Minutes from the HOA Board meeting in late July indicated the contractor was getting the need permits.

Last week the county returned and place a second notice on the building. "THE BUILDING IS TO BE DEMOLISHED AND REMOVED"

I spoke with the county this week and determined the "contractor" had not applied for a permit, did not have a commercial Lic., and was no longer listed by the state as a business (dissolved in 2015).
The online HOA records show we have paid them $15,000 to date. I do not think we ever had a contract with the "contractor". Oh, the on line telephone number indicates the builders offices are closed/out of business. Who do we go after??? The contractor or the HOA Board? or both? There is even more to this story but it's not really relevant.

It's the responsibility of the Board to contact the contractor. Presumably someone on the board will know how to contact the contractor since it was the new officer's project/idea. Keep tabs on what the board is doing to resolve the issue.

Can the materials be salvaged and the shelter moved to a different location that will still provide the desired shade for the tennis courts? Can a new contractor be hired to dismantle and move the shelter?

Thanks for the early responses. I have already considered some actions with other HOA members joining in. There may be some solution to this but without a dialog with the county, that we appeared to have ignored, I'm unsure what the county will do or allow. The current Notice says to "demolish" the structure. This was the second notice to the HOA Board because the first one in early July seems to have been ignored.

Although I can't prove it (yet) I think our board had knowledge of this "contractors" lack of credentials. With no building permit ever posted during construction it had to be obvious to the Board IMO. He low balled costs and cut corners. Who the heck would insure such a structure?

One possible solution, short of getting the county to issue a permit and going through the inspection process is to rebuild the pavilion obtaining a permit and get an authorized builder to dismantle what is there and rebuild. An expensive process but possible. The question then is who should cover the costs for this??? Legal action is the last thing I'd want to happen but this action really borders on being criminal.

You eat it as a very expensive lesson learned.

I see that making the demand for corrective action comes first.

You can be as reckless as you wish with your own money but when you serve on the BOD you are held to a much higher standard. The fiduciary duty we talk about here arises from the fact that the board is handling other people's money and owes the members a duty to exercise due diligence before spending it.



Assuming you could find the "contractor" and assuming he had assets to attach, what case law would he cite that says he is entitled to keep some or all of the money even though he had no license, he obtained no building permits, and the county required all of his work to be removed?

Has anyone approached the county to explain the situation and ask about remedies other than demolition?
I would expect the HOA Board to be all over that.

At this point, I would suggest that the OP step up and not wait for the board. Anyone is better than no one.

I've been out of town on family issues with my Dad (going into an Assisted Living place) and returned yesterday. It appears the situation has gotten worse.

I strolled down to the pavilion yesterday and discovered the County Violation Notices had been removed!

My first thought was that they had reached an agreement with the county to complete the building. NOT!

I called the County Permits office and spoke with the same inspector. He said the County had not removed the Violation Notices (which clearly state DO NOT REMOVE). I decided to call the head of the Department, whose name was listed on the Demolish order. Today I spoke with him. He indicated that they had been told by our Mgmt. Company that we were seeking a Variance on the structure. He said they had not seen a Variance request but they would reply to the County Board of Supervisors that they would not recommend approval of a variance for a number of reasons. Unlicensed builder, no plans, no permit, no inspections, in an area not zoned for a building, poor construction, intention to bypass permitting requirements, etc.

Anyway he indicated his inspector would visit the site again and determine if the building had been demolished...it has not. If it was still standing they would issue a court summons to the HOA Board members. A judge would hear the plea and decide if it stays or goes. He stated it would go. There appears to be no wiggle room. Our Board really stepped in it!

So now we have a couple of grand for an attorney and I'd estimate about $5K to demolish it, remove the foundation, pull up the electrical lines and return it to it's original state, a grassy area.

I see no way to fix the problem. It's a mess. I'm waiting for the board to resign. They will not make restitution to the HOA although I've not spoken with an attorney. I see no way they can respond to any "derivative action" demand that has been suggested by some respondents. What a mess.

Thanks for your thoughts. I am not in communication with any Board members at this point as they seem to think this is all my fault!

I agree with your assessment 100%. We, the HOA are the "Builder" not the contractor. Since the HOA Board and HOA President are not talking I can only rely on what I see posted on the building. Three documents, STOP WORK, Notice of violations and now a demolish order.

I did talk with the inspector and also his boss the building permits/inspections office director. He recited a long list of issues, none of which I disagree with. His unofficial opinion was that our Board was trying to do this on the cheap and hired this guy to build it. Well it appears that it's coming down and the concrete foundation will be torn out. Sod will be used to restore the area to it's original condition.

I am in contact with a couple of homeowners who are aware of the situation. Most of the community is not aware of the events since someone has removed all the County Orders that were posted on the building (they all said DO NOT REMOVE).

I'm trying to determine if we should send a "Derivative Action" letter to the board as some have suggested in previous responses. This may be a first step as the Board is not responding and remains silent. In the end, I see the building coming down and the area returned to grass. After building costs, attorney fees and demolition I'm estimating total costs at about $22-$25K. I think right now we have spent around $17K. A lesson learned.

Thanks. I have discussed this option with a few others and I've been surprised that no one wants to put their name on anything. The Tennis folks bitched for years, rightfully so, that everyone not playing or just watching had no place to sit away from the sun. This was just because the developer opted not to build a shaded structure. Every year the issue came up. NOW we have one!! Although the county posted 4 or 5 orders on the building during construction telling us to contact them ASAP it was ignored. The final order in August was to TEAR DOWN the structure. This was because the Mgmt company counseled the Board to "ignore it and it'll go away", at least that is what I've been told. In the end the county finally called their bluff and the HOA President was served by the Sheriff in November.

The President came to me in November telling me they had been told to tear it down. A very expensive lesson and as I was in the middle of telling them to negotiate with the county to prevent this it appears that the Board has refused to talk and try and fix it. They went to court and I have no idea of what the attorney fees were. I've only seen the fine $405.

We are now approaching nearly a year since the project started and there is no movement.

When I approached some members about the option you presented I got a cold shoulder. I even found an attorney that does represent members against HOA Boards. I was looking for a few 2-3-4 members to sign on and help me get the ball rolling but none would do so. As I'm retired I could spring for a few hundred bucks but I was looking at much more. So here we sit. Zero interest in pushing the Board from all I've seen.

I planned to retire here until I could no longer care for the property, perhaps 10 years plus (I'm 71) so I don't want to be the only one that is blamed if the building comes down. True this is not my fault at all, I have delivered the message to some members about the problem and had hoped a few of the younger folks would get involved. I've been wrong.

Thanks again. Until or unless there is a change I'll just leave it alone.

DennisG7

Presumably the board has director's insurance. If you sue the board or individual members then the insurance company would defend them and/ or pay out any settlement.

EXCEPT if the directors violated the business judgement rule

"The business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests (of the HOA)"

As Tim has remarked earlier it is possible that they did not violate this rule. It is possible that they did. It would have to be litigated.

IF the board thought the contractor was qualified and that the contractor said he would proceed to get permits...then I do not believe any court would find them liable. If that happened...no recovery from the board...no recovery from the insurance company...initiators of the lawsuit are out their legal fees.

Thanks for your comments. In trying to be brief I did not address other issues and conversations. To be sure, the President has kept most of this info under wraps. He was told on July 6th 2016 that the contractor he hired to build the pavilion had not obtained a building permit and did not have a license in the State and the County. I was present when another homeowner told him this. It's my belief that he knew this before he hired them but I have no proof unless I can locate the original contractor. He has vanished and is out of business. The President did know of about the Bus. Lic and lack of Building permit in early July 2016. The BOD minutes during the late summer and fall kept indicating that the contractor was working to solve some issues with the county. Of course the contractor could not apply for a building permit because they had no State registration and no County Business.Contractor Lic so they were prohibited from ever applying for a Building Permit. On day one of construction in April 2016 it was apparent no Construction Permit was posted. It was never posted! At any point the President could have stopped and asked about it. He never did. BTW the Board President is a lic. architect!!

After he was told the contractor had no GA Contractor Lic and no County Business/Contractor lic on July 6th he and the Board should have taken corrective action. They did not. I personally addressed this with him in late July 2016 and again in October 2016. No response.

There has been no mention of these events in any minutes or open member discussions. I'd say around 10-15 people have knowledge of what has happened. Most are not aware that the costs have more then doubled because it's not posted nor does it show in any balance/expense sheets. The president came to me last year and asked me not to raise it in public to avoid being "embarrassed" I told him to fix the problem. My assumption was he would legally go after the contractor but as I said I think a contract was never presented or signed and it was a handshake deal.

Once we see all the associated costs I think we will be north of $40K on this project. That is 50% of our entire annual budget! We only have 189 homes.

Legal action seems to be the only option unless we just forget it. I spoke with the HOA Secretary who is also a board member, last week. She seemed totally unaware of any of this. Either acting like she knew nothing or perhaps she did not?

We have no such clause. In fact out CCR and By Laws are the original done by the developer in 2000. Not a single change in 17 years. There is no language dealing with budgets, new projects, member approval or voting(except for new BOD) in the documents. I'm frustrated that very few members seem to care about it. Perhaps we reap what we sow.

Now it seems to me that the excess charge associated with not getting permits, etc. amounts to about $100/unit. This is regrettable, unfortunate, but not something worth getting worked up about. It may well be a reason to change the board, but to be honest now that the board has learned something it is unlikely they will make this mistake again.

Many posts on this board seem to go along the following lines: the board has done something that has resulted in unnecessary costs (pr perceived unnecessary costs) to the associations. The poster looks for a way to get satisfaction, which usually means punishing someone. Usually poster wants to make a "case" often over an amount smaller that the realistic cost of a lawyer.

It is worth keeping in mind that your volunteer directors are usually trying to do the right thing. Sometimes they will make decisions that do not work out. In many cases it is worth focusing on how to improve things going forward, rather than look for ways to assess blame.

You potentially have the following choices:

1. See if the local government will approve based on your information that you hired a contractor in good faith and that it was your unethical contractor who violated.

2. Potentially SUE the contractor to recoup money paid when they most likely violated your "hopefully" written contract. If the contractor did not get the proper permits ... that was their fault. However, the question is does your state allow the HOA to "recoup" the cost of legal fees on top of the "contract violations" if they WIN such lawsuit. Potentially while you could have a high probablility of winning ... how much will it cost? AND are the homeowners willing to foot the initial legal fee bill?

3. Tear down and eat what you have spent and chalk it up to a lesson learned.

IMO ... Potentially if you get enough homeowners to show up at the next few local government meetings (maybe have news crews there) and throw tantrums noting how much money you have expended and asking "why they did not STOP" the construction prior to the large dollars already spent ... you might get some relief. LOL ... even if they say NO you are in the same position as now ... but they might allow you to proceed via their Board of Adjustments as it is known in my local area. This board in my area hears appeals regarding the local codes and determines ultimate outcome. LOL ... I served on this BOD along with Planning Commission and in my area one of the criteria is the "applicant" which in your case would be the HOA could not be the entity which "caused the issue". Potentially in your case the contractor "failed" to obtain proper permits and was the contractors fault.

Just some thoughts ...

Well ... can depend on your local codes. My County is ridiculous to the point that if you want to replace any door or a broken window ... a permit is required (they are trying to nickel and dime people to death). I could understand if you were changing the size and required any construction. Of course some will ignore; however, the code states he who is installing is to obtain the permit. Had an installer next to me one day at the County Building Permit counter and after he left I asked some questions after over hearing his conversation. Was astounded at the difference between here and last State/County where we lived. All he was doing was hanging new inside doors throughout a house and had to pay X amount per door just for the privilege of hanging a new one. While it was not excessive cost per door ... to me it was the principal of the issue when technically no construction (changing door size) was made. Similar with fences ... landscapers know if build in County no permit needed, but if build in my local city they require the permit. If they are constructing they include that cost in their estimate and they obtain. If I build it as the owner, then yes I would be required to obtain the permit. Of course here was another shock I encountered ... I as a homeowner can run electrical lines for my own home ... YEP not required to have any licensed electrician do anything. All have to do is obtain a County permit. Where I previously moved from we had to have a "licensed" professional for certain things such as electrical, gas lines, etc. LOL ... not here.

Incorrect, though it may vary by state.

It is the sole responsibility of the hired contractor to ensure that there is a permit for the work that THEY are performing. Performing work without a permit is a violation of state law in many (most?) states. Only if it is the homeowner taking responsibility for the work being done to code is it the homeowner's responsibility to ensure there is a permit pulled.

Example: If I build my own house, I pull a permit for the house. If I do the electrical myself, I pull the electrical permit. Then if I HIRE OUT the HVAC, it is the responsibility of the HVAC subcontractor to pull the mechanical permit.

Perhaps ... but my point is that the OWNER is responsible for the permit.

The contractor, under various state by state law, may, or may not, be prohibited from working UNLESS there is a permit in place ..... .

enough, the meter now reads 67%

That would be the owner, not the hired contractor.

The property owner is responsible for the property, not the labor they hired.



Of course the permit has the contractor's name listed. The 'job-site' is the owners property.

Few, if any, HOs want to trek down and fill out the paperwork so they have the contractor do it.

Unless the HO is doing the work themselves the contractor's info will be on the permit as the 'worker'.

However, the HO will still be the responsible party 'down the road'.

Michigan excepted, of course