Letter from the South Carolina Attorney Generals Office

Started by ReneeP3 • 3 replies • 1096 views

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ReneeP3 (South Carolina)
Posts: 42

Posted:

I ran across a letter from the AG office of South Carolina that I thought was interesting.

http://www.scag.gov/wp-content/uploads/2014/02/herbkersman-b-os-9674-2-3-14-property-owners-association-00179929xD2C78.pdf

If you can resign your membership in an Association that is a non-profit corporation, then how can the HOA be mandatory?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Per the letter:

"The resignation of a member does not relieve the member from any obligations the member may have to the corporation as a result of obligations incurred or commitments made before resignation. "

Hence, contractually (per the CC&Rs) you would still be responsible for annual assessments, complying with deed restrictions, etc.

In other words, you would have all of the obligations with zero say (as you would not be a member) in how things are done or have access to any amenity except common roads, sidewalks and land.

The opinion goes on to state:

"However, the determination as to whether (the management] violated an y code of law is factual in nature and thus, beyond the scope of this opinion and better addressed by a court. "

So, feel free to take the issue through the courts if you desire.

SheliaH (Indiana)
Posts: 6,964

Posted:

The last paragraph in this letter could be the key:

"This Office has not examined any documents from your nonprofit corporation, nor do we even know the name of the entity, and thus we make no assertions or validations of any specific nature. This Office is only issuing a legal opinion. Until a court or the legislature specifically addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter."

Since the AG didn't review the documents from the HOA, to assume you can resign from a HOA simply because it's chartered as a non-profit corporation could be a big mistake. If the proper paperwork was filed in your city or county regarding the HOA, you may be a member, whether you want to be or not. If you really want the answer to this question, have an attorney look at the HOA DOCUMENTS or go to court and see what a judge has to say. Or you can move and get out of the HOA altogether.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

LarryB13 (Arizona)
Posts: 4,099

Posted:

Resigning from membership in the corporation may not relieve a person of obligations that arise from common law.

As an example, in Freeman v. Sorchych the Arizona Court of appeals held that two parties who used a road on an easement that neither owned had a legally-enforceable obligation to contribute to maintenance. This obligation exists even though there was no association or other entity involved. See http://caselaw.findlaw.com/az-court-of-appeals/1553750.html

Even though I find my own association to be an annoyance, I have opposed efforts to dissolve it simply because having a POA provides an orderly - though not perfect - means to assess costs, collect funds, and make repairs to our roads. Without the association we would have the potential for 1,600 members simultaneously suing the other 1,599 members to collect their costs of maintaining our roads.

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