Ex-Presidend won't turn over association email and it's password

Started by GuyM1 • 41 replies • 1748 views

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GuyM1 (Ohio)
Posts: 318

Posted:

Hi Everyone

So the ex-president was asked for the Association address and its password and he won't turn it over. He states it's in his name and it's his property. I beg to differ even though he started the email address and he used his name it is still property of the Association. The email was used for Association business for communications from and to members, Lawyers, and business contacts. Being the new President I contacted the Attorneys and asked their opinion and they agreed that it was Association property and they would call the ex-president and ask him to turn it over. Haven't heard from the Attorneys yet but it's been a few days and I'm guessing he's not going to or he said he would give it to them. I think that it should be kept for Association records and upcoming Litigation. I'm going to contact Attorneys today and find out if he is going to turn it over and why they haven't got back to me on this matter. Just wondering if anyone has run into this and what happened in their case or if anyone knows about this kind of situation? How far should I take this?

Thanks, Guy

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Well it could be his property technically. If it's going to be used for litigation purposes then guess who has to show up to court? The person with the evidence. He can be subpoenaed to go to court to testify what is in those emails. I know from first hand experience. I had to go to court for our HOA and I no longer was a member! It's just that I had dealt with the issue that ended up in court. (I did a foreclosure and the tenant had sued the owner. The HOA had lied and said I had stolen the records when they were in the clubhouse the whole time. The issue was even labelled and put into a separate folder).

He may say it's in his name because his name may show up in where it' coming from. The email address may say "XYZ HOA" but the name on the account is the ex-presidents.

I would just tell him if he wants to keep the account then he gets to go to court for the HOA if he's got the records. He may be more than willing to turn it over then.

Note: The President is NOT to act as Secretary. So if it is the Secretary's responsibility to keep records or etc this email covers, that could be a sticky point. They may not be "Official" records anyways...

Former HOA President

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Melissa

You may have a point the email records may be used against him personally in the Litigation so they will be subpoenaed.I still say that when he started the email he told everyone he was making an email address especially for the Association and when he did he was acting as the President of the Association so I think it is a proprietary property of the Association. I have made a new Email address for the association from my account but used the Association name to be owner of the email. I'm not hiding anything from the Association and trying to be as transparent as the board can be to help put this Association back on track.

Thanks Guy

AugustinD
Posts: 5,144

Posted:

Wait until this upcoming litigation materializes. Then if truly needed, go after the emails.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Augustin

If he doesn't they will be asked for during the Litigation.

Would like everyone's input on is it or isn't it the legal property of the Association?

Thanks, Guy

LetA (Nevada)
Posts: 2,679

Posted:

Guy, who has access to the email server account? I am assuming that all HOA related emails are CC"ed to each BOD and CM if you have one.
If the secretary has the master password for the email server, I would archive all the emails from the former president on a portable drive and then remove his access
to sending and receiving any emails using that account.

AugustinD
Posts: 5,144

Posted:

GuyM1, Congratulations on being elected to, I presume, both the Board and as President. I see from the archives that you have a legal dispute with the HOA over significant property damage and other matters, and you were considering moving. The ex-President supposedly acted solo on many issues. In the past, the ex-President appears to have made you his punching bag. Your HOA has only nine units. Is the main theme, of this possible upcoming litigation, misconduct by the ex-President, with the hope that the HOA will recover money from the ex-President personally, and with you as a principal witness? You have a mess on your hands. It is admirable that you stepped up. But now it sounds like legal conflicts of interest seem to be arising. I would not want to be in your shoes.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi LetA

I think only the President had access to Association email because things were sent to the two other board members by way of their personal email accounts. I'll ask the only board member that had to stay on if they have the password to the email account.I think the ex-president is deleting any emails that incriminate him from the account but we'll just subpena the email provider for deleted emails.

Thanks, Guy

GuyM1 (Ohio)
Posts: 318

Posted:

Hi AugustinD

Must run right now but will come back later today and give more on the subject....Thanks for the Congrats.

Thanks, Guy

JerryD5 (Colorado)
Posts: 218

Posted:

I hope you are able to work it out with the ex-president. As board president, I set up an board email for myself and directed the other 4 board members to do the same. We have only had 1 board member leave and we were able to gain access to the account once he left.

That reminds me that I should come up with an official policy concerning the HOA email accounts. It might have helped you in your case but it sounds like the ex president wants to be a PITA.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

This topic is complicated because it relates to formerly not considered ownership.

First, the ex Pres sounds like a xxxx -only one way to treat that type. Be nice, then be firm, then if you have the money take them to court. Make sure they know the process you are following.

I’ve been on BoDs for three subdivisions over the last three years ...ACB on a fourth. Long story. Two of the subdivisions went out and bought an HOA computer and not. ExpI ctedly, it hasn’t worked well, because the board members have their own PCs and they get confused by having more than one device. Then, the software needs upgrading, and the neighborhood device doesn’t have a full suite of word processing, and spreadsheet capability. Then the accounting software is on that computer, but they travel with their own device, etc, etc.

One neighborhood bought the online version of the accounting software - has worked out way better because the Officers can back one another up - but carefully since there are no configuration management issues. One neighborhood (I am a Non Resident Owner aboard member - have properties there that I rent) uses the neighborhood computer only for accounting software.

Lots of constructs ...all of which can be screwed up by one xxxx - like your x Pres.

After lots of reading, I think the best construct/process is online management - wherein the neighborhood committee nicates officially through a website - maybe even uses a website with built in accounting software capability so support is available ...still have to backup the data somehow in case the website company goes under ... but, has lots of advantages. Except, one xxxx, like your x Pres can screw it up.

Sorry - just walking through in my head how you can’t protect records like you are trying to get from your x Pres if there is a xxxx involved with the password.

I still like the process of taking him to court.

DouglasK1 (Florida)
Posts: 2,046

Posted:

If it's a free email account from gmail or similar then I could see where the association could have a hard time claiming any rights to it.

If it's a paid email account, then I would assume it depends who paid for it.

Our association has a registered domain name (xxxhoa.com) which the association pays for. We also have an email hosting account using that domain so we can set up multiple email addresses ([email protected], [email protected], etc.). When new officers and directors take on their roles, they are given the credentials to the appropriate accounts, and added to the required lists. For example, the "board" address is set up with a forwarder so that those emails go to all board members.

This does not cost much to do, clearly defines ownership, and provides good continuity as the officers and board membership change.

Escaped former treasurer and director of a self managed association.

JerryD5 (Colorado)
Posts: 218

Posted:

Quote:

Posted By DouglasK1 on 05/03/2018 7:16 AM
If it's a free email account from gmail or similar then I could see where the association could have a hard time claiming any rights to it.

If it's a paid email account, then I would assume it depends who paid for it.

Our association has a registered domain name (xxxhoa.com) which the association pays for. We also have an email hosting account using that domain so we can set up multiple email addresses ([email protected], [email protected], etc.). When new officers and directors take on their roles, they are given the credentials to the appropriate accounts, and added to the required lists. For example, the "board" address is set up with a forwarder so that those emails go to all board members.

This does not cost much to do, clearly defines ownership, and provides good continuity as the officers and board membership change.

We thought about going this route. How much do you think this would cost either on a monthly or yearly cost basis?

JeffS28 (Tennessee)
Posts: 29

Posted:

Yes have run into this.

This is one of the biggest mistakes a HOA can make, you will have to subpoena the deleted emails, I think he will turn it over but some emails will be deleted. Subpoena an email provider is tough, most times the email provider will be in "contempt of court" and still not turn the deleted emails over, it will take time but it can be done.

Another option, send a voluntary questionnaire to every single homeowner and/or agents and ask them if any emails were sent to/from that email address. It is voluntary but I'm sure your attorney can make it threatening enough where owners will answer.

In the future, have all emails and CC the management agent on each email, agents are required to keep emails although they can still withhold them.

Yes, technically it is the former presidents account but in my opinion a serious violation and disruption of communication.

Hope this helped.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Just want to say when you set up your new HOA email account you also follow this advice. Meaning that you and your membership understand this is a group email and not owned by an individual. It also should be a password set up that is changeable. That someone else knows the security answers to change it. Which can be more important than having 1 shared password.

One could change the account password by a few methods if available. It depends on how the website used "Protects" the password. Some require a 3 security questions. Others maybe basic information you may already know. Like a phone number or address etc... You don't have to know the original password you can pretend to forget it to reset it...

It's important to note the method and if a secondary email is required when setting up the account. That way if have to turn it over yourself one day or forget the password, it can be accessed.

Former HOA President

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By GuyM1 on 05/02/2018 4:15 AM
Hi Everyone

So the ex-president was asked for the Association address and its password and he won't turn it over. He states it's in his name and it's his property. I beg to differ even though he started the email address and he used his name it is still property of the Association. The email was used for Association business for communications from and to members, Lawyers, and business contacts. Being the new President I contacted the Attorneys and asked their opinion and they agreed that it was Association property and they would call the ex-president and ask him to turn it over. Haven't heard from the Attorneys yet but it's been a few days and I'm guessing he's not going to or he said he would give it to them. I think that it should be kept for Association records and upcoming Litigation. I'm going to contact Attorneys today and find out if he is going to turn it over and why they haven't got back to me on this matter. Just wondering if anyone has run into this and what happened in their case or if anyone knows about this kind of situation? How far should I take this?

Thanks, Guy

You are going to get varying answer from folks most of whom don't live in your State.

You really need to consult the HOA attorneys and determine what the record keeping requirements are. I'd hazard a guess that the emails in that account related to HOA business are considered business records and there is probably some kind of record retention requirement.

But then you know Hillary got away with it so who really knows :-)

GuyM1 (Ohio)
Posts: 318

Posted:

Hi George

I did send him a very polite email asking for the password to have all contacts and emails for HOA records. Well you can guess the response I received was not very nice. So I just went to the Attorney to call him and ask for any and all HOA property. Someone at the Attorney's office reached out to him and he said it was his and said there were personal emails on it and didn't give an answer if he would hand it over. Pretty sure those personal emails are evidence of his Breach of Duty. So the Attorney contacted me today and said he left a message to call him back a few days ago and hasn't received a return call. The next step is to ask the board how far do you want to go to get it. Waiting to hear back by Friday. Ex still has the checkbook and that account is in his name. At the resignation meeting, I told him he was breaking the law and that he couldn't be Treasurer and President and that the President couldn't hold any other position when being the President.

Thanks, Guy

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Nigel

To make this clear to everyone the email whether made in his name or not is Property of the HOA. The Email has emails that contain HOA business and contacts that may be needed for many reasons, especially Litigation.

Thanks, Guy

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Melissa

What I'm talking to the board on is making a website that all members can see what is going on and email the Board any questions or concerns that they may have. All board members will have all access to the site. This will help when board members get changed it will not cause any problems.

Thanks, Guy

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Jeff

You hit the nail on the head. The Attorney is already involved. Yes, I'm sure he is and has deleted emails that will shed him in a very bad light. The emails are already part of a Lawsuit. They will be brought out in the Litigation whether he likes it or not. This just shows even more of his wrongdoing. Really making it easy to show Breach of Duty.

Thanks, Guy

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By JerryD5 on 05/03/2018 12:07 PM

Posted By DouglasK1 on 05/03/2018 7:16 AM
Our association has a registered domain name (xxxhoa.com) which the association pays for. We also have an email hosting account using that domain so we can set up multiple email addresses ([email protected], [email protected], etc.). When new officers and directors take on their roles, they are given the credentials to the appropriate accounts, and added to the required lists. For example, the "board" address is set up with a forwarder so that those emails go to all board members.

This does not cost much to do, clearly defines ownership, and provides good continuity as the officers and board membership change.

We thought about going this route. How much do you think this would cost either on a monthly or yearly cost basis?

I'm not on the board any more, but we have an plan that I think is about $70/year for unlimited email accounts including the domain name registration. I did a quick check and it appears most hosting companies charge by the email address, so those would get expensive if you set up one for each officer, directors at large, board as a group, ARC, gatemaster, etc. like we do. With the unlimited accounts we just set up as many email addresses as we want in our domain. Post your email address if you'd like the name of the company.

Escaped former treasurer and director of a self managed association.

GuyM1 (Ohio)
Posts: 318

Posted:

Thanks, Douglas

[email protected]

Again Thanks

JohnC46 (South Carolina)
Posts: 14,265

Posted:

GUY

If an attorney is already involved, all bets are off as per the present Email address.

Our HOA has an Email address of [email protected]. The President has the password and passes all Emails on to the BOD for our information. The BOD agrees on how to handle/respond. Once the BOD agrees, the issue is passed to someone (BOD Member, MC, Vendor, etc.) to handle it. The password/procedure has been handed down from President to President with no issues.

Could we have an issue if a President did not pass the password down? Yes we could but so far, so good though I can see how it could become an issue. I am curious how to prevent this. Maybe an "account" requiring several signatures such as a multi person check signing procedure. Anybody have any ideas?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By GuyM1 on 05/03/2018 5:10 PM
Thanks, Douglas

Again Thanks

Info sent.

Quote:

Posted By JohnC46 on 05/03/2018 5:58 PM

Could we have an issue if a President did not pass the password down? Yes we could but so far, so good though I can see how it could become an issue. I am curious how to prevent this. Maybe an "account" requiring several signatures such as a multi person check signing procedure. Anybody have any ideas?

With a free address, I'm not sure how you would prevent whoever has the password from controlling the account. You could possibly contact gmail, aol, etc. and plead your case, but you might not get far.

With a paid plan, you put the HOA as the company name that is purchasing the plan, I would imagine that in the future anybody who could show reasonable claim to represent the HOA could get the admin privileges. As a side note, I was amazed how easy it was for new board members to become signees on our bank account. They just wanted a copy of the minutes of the meeting where the board members were elected and a printed letter on HOA "letterhead" signed by the president. Like most smaller HOAs we don't have printed letterhead, we just have a Word document template with something that a board member designed. It seems to me that it would be ridiculously easy to hijack HOA bank accounts, so the same thing could probably happen to hosting accounts.

Escaped former treasurer and director of a self managed association.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Should be able to get the bank account put in someone's name as long as you bring proof you are the President or a board member. May call the bank on what they consider proof of board membership. It may vary. You may need to bring the meeting notes showing the vote. It may take a notary or having something stamped with the corporate stamp.

Can always change bank accounts worst case or maybe better case... Could be you find a better bank option.

Former HOA President

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By GuyM1 on 05/03/2018 4:39 PM
Hi Nigel

To make this clear to everyone the email whether made in his name or not is Property of the HOA. The Email has emails that contain HOA business and contacts that may be needed for many reasons, especially Litigation.

Thanks, Guy

Even though it is a private email, if he used it for HOA business as part of his duties as a Director of the Association, those emails may very well be covered by whatever record keeping requirements your State has for corporations.

It might very well be that they should be archived by the association for whatever period of time the law or your records retention policy requires.

Obviously if it is a private account, he has a right to not disclose those emails of a personal nature or unrelated to the HOA, but he should provide copies of the emails he initiated or responded to as part of his duties as a director.

If you have a management company and the community manager or other directors were included on his emails or responses, it should be relatively easy to capture them.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GuyM1 on 05/02/2018 4:15 AM
Hi Everyone

So the ex-president was asked for the Association address and its password and he won't turn it over. He states it's in his name and it's his property. I beg to differ even though he started the email address and he used his name it is still property of the Association. The email was used for Association business for communications from and to members, Lawyers, and business contacts. Being the new President I contacted the Attorneys and asked their opinion and they agreed that it was Association property and they would call the ex-president and ask him to turn it over. Haven't heard from the Attorneys yet but it's been a few days and I'm guessing he's not going to or he said he would give it to them. I think that it should be kept for Association records and upcoming Litigation. I'm going to contact Attorneys today and find out if he is going to turn it over and why they haven't got back to me on this matter. Just wondering if anyone has run into this and what happened in their case or if anyone knows about this kind of situation? How far should I take this?

Thanks, Guy

You are potentially going to find out (if email was a generic such as “hotmail”, “gmail”, etc.) that he who sets up ... is he who OWNS!!! Is it always fair ... not always! There are circumstances where one individual will set up an email for an “entity” and then later will not like when they are removed from the picture such as this situation and asked to give up their rights regarding these emails. You will have a harder time with a generic email vs the HOA paying for and having a domain name with email addresses available. One is free and can be established by anyone ... while the other is paid for by the HOA. I for one would be intersted to know how your State determines this outcome.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Janet

I have had a discussion with the Attorneys on this matter and they say that is Association Property. They say the email was made in the capacity of being the President of the board and that it was set up and used for Association business there for it is Association business. When I email the ex-president and asked for it he replied in an email back to me this statement: "No, that account was established under my name for the purpose of easier contact with all HOA members and was so blatantly abused it could never achieve its original purpose". I think this statement says it all. I think that the only emails he wants the new board not to have are the ones where he talks to other board members that would show him in a bad light. The only reasons that I think are things that he said that can be used against him in a lawsuit and that the person he hates asked for it.

I'll keep everyone up to date when things occur.

Thanks, Guy

JeffS28 (Tennessee)
Posts: 29

Posted:

I agree, go to the management and get everything you can that was sent through that email address, this is not the best solution but it is a start. If you really want to get everything, subpoena is the only way.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Douglas

About the legal rights to the email. When the Ex-president stated he was going to make an email for the Association would that make ownership the Associations? Here is his email letting everyone have the new email address.

Email quote
"I have finally created an e-mail account within "G-Mail" that I will use for the HOA in place of my personal e-mail. All future correspondence regarding HOA business should be sent to this new account. Thanks, President"

That quote is the word for word in the email sent to everyone.

Is this strong enough to force the issue of who owns the email address?

Thanks, Guy

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By GuyM1 on 05/15/2018 6:39 AM

About the legal rights to the email. When the Ex-president stated he was going to make an email for the Association would that make ownership the Associations? Here is his email letting everyone have the new email address.

Email quote
"I have finally created an e-mail account within "G-Mail" that I will use for the HOA in place of my personal e-mail. All future correspondence regarding HOA business should be sent to this new account. Thanks, President"

That quote is the word for word in the email sent to everyone.

Is this strong enough to force the issue of who owns the email address?

You could contact gmail and see if they will turn over the account, but my guess is that they will not based on this.

Beyond that, it would be up to a judge to decide ownership so that begs the question of whether this is important enough to spend lots of money on to initiate a lawsuit.

Escaped former treasurer and director of a self managed association.

AugustinD
Posts: 5,144

Posted:

After reviewing Guy's other recent thread, I think there are serious legal problems with him pursuing these emails. It does not matter that he is on the Board or that he is President. He is suing either the HOA or the prior board members as individuals. He is an "adverse party" to the HOA. He believes these emails will help his suit against the HOA or the individual board members. The statutory rules for discovery are strict, and he is bypassing them by using his authority as a new board member and/or as President of the HOA.

The other two board members must be the ones to consult with the HOA attorney on this and decide whether they want to pursue the emails from the former HOA President. If the HOA attorney is competent, he or she will say that GuyM1 (as an "adverse party" to the HOA) may not view the emails.

JeffS28 (Tennessee)
Posts: 29

Posted:

He doesn't have to be an adverse party if those emails contain business of the HOA, Guy has a right to all documents related to the HOA, Guy can claim he is carrying out his fiduciary duty by demanding these documents to make sure proper governing took place while the former president was carrying out his/her duties that is if he does find something damaging to the HOA.

Guy will get the documents one way or another through compel motion, damaging or not. This is where the HOA attorney and insurance attorney and other directors would be wise to settle but at the end of the day, Guy is entitled to all documents. Most people get in these positions to mop up the mess the previous directors made, Guy will find a lot of damaging evidence but he needs to create a good balance between fixing the HOA issues going forward and making sure he get's his lawsuit rewards for the HOA breaching its contract with him as a member due to the malice actions of the former directors.

Any time people come out with the conflict of interest argument, Guy can simply state that he is carrying out his fiduciary duty by protecting his rights and a member but also protecting the HOA from former actions of the board.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Jeff

The Board had its first meeting yesterday and I am officially President. I'm going to do my Fiduciary Duty to the best of my ability and be very transparent. The remaining board member from the old board totally was against going after the email address which I told them it was HOA property. So I just let it go and will let it be taken care of in the suit. I think I should send the ex-president a certified letter with a new request for HOA property and the email that he states its for HOA business from 2016 and the letter that he denied me access to the email account. If there was nothing that would lead a court to go after the old board then why is it a huge problem with them even the remaining member jump when I started to talk about it. I'm sure there are emails between the board members that say things about me or the damages to my unit. Also, the old board left us with no funds after the loss from the lawsuit that the Judge's ruling stated the board broke the state condominium laws. Leaving the Association without funds to pay all the bills and them resigning is a huge Breach of their Fiduciary Duties. There is LOTS more that I haven't given out so here is a few more. Board Affidavits that they say the had a meeting about the lawsuit and that the board voted unanimously to bring the suit. There was no meeting and no minute and no vote. Also tried to use an old board member in that vote not the current board at that time when the vote was supposedly taken. Also, I can't find any meeting with minutes on any of them discussing any of the many issues that caused damages to my unit even after the had the Insurance company come out and give them a denial letter for not maintaining the common area. Newsletters and letters to the members calling me names like childlike, telling people I was the problem and telling them to confront me on the truck issue. Lots more.

Thanks again Jeff
Guy

GuyM1 (Ohio)
Posts: 318

Posted:

Forgot that I brought up Mold issues and the Insurance company said mold issues yet the board did nothing! But after the same summer, one of the board members found mold and the board had it remediated immediately then just last year another unit had mold from a water leak and the member had to move out till it was all fixed. But for over two years I have lived with mold in several places but yet nothing was done!

Thanks, Guy

JeffS28 (Tennessee)
Posts: 29

Posted:

I see no issue going after the emails which were HOA business related, if they cc'ed management, it may be best to get the one's from management first, that may be enough to pursue slander charges against them.

But is slander suit worth it? I don't think they damaged your reputation enough to prevent you from running. They definitely put up obstacles like any political atmosphere would but you are now president and no one is denying that. Now if didn't get elected and they damaged your reputation from ever getting elected, then you would have a case. But this is not how it went down.

End of the day, talk to the attorney, it may not be worth it to pursue them on the breach of duty as they are still indemnified, you will have to fork out the money to do it. Probably best to start doing repairs with what little money the HOA does have. I'm sure the HOA insurance does cover common area's, not sure about all the details, can't another claim be filed to start needed repairs to assets owned by the HOA.

What exactly are you looking for, damaging evidence, they already lost, so isn't that enough?

You don't have to be insanely transparent, you simply have to follow the bylaws and covenants. Make sure you have the boards vote on each decision then no one can challenge the decision, especially financial one's. People can moan all day, if you had a majority vote to spend money for repairs, no one can complain since you followed all the governing steps. A few things might require a membership vote like a special assessment but overall the board handles the financial decisions.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JeffS28 on 05/15/2018 10:29 AM
He doesn't have to be an adverse party if those emails contain business of the HOA, Guy has a right to all documents related to the HOA, Guy can claim he is carrying out his fiduciary duty by demanding these documents to make sure proper governing took place while the former president was carrying out his/her duties that is if he does find something damaging to the HOA.

Guy will get the documents one way or another through compel motion, damaging or not. This is where the HOA attorney and insurance attorney and other directors would be wise to settle but at the end of the day, Guy is entitled to all documents. Most people get in these positions to mop up the mess the previous directors made, Guy will find a lot of damaging evidence but he needs to create a good balance between fixing the HOA issues going forward and making sure he get's his lawsuit rewards for the HOA breaching its contract with him as a member due to the malice actions of the former directors.

Any time people come out with the conflict of interest argument, Guy can simply state that he is carrying out his fiduciary duty by protecting his rights and a member but also protecting the HOA from former actions of the board.

I believe the above position will complicate Guy's lawsuit and work against him.

The right to review HOA records does have limits. Anything that is "privileged" does not have to be given to a minority director for viewing, especially a minority director who is threatening suit. "Privilege" can take several forms.

GuyM1 wants either the HOA or the individual former directors to pay him damages. By definition, his interests are adverse to the HOA's interests and the interests of the former directors. GuyM1 can try to throw his weight around using his authority as Board President and rights as a director. But a competent HOA attorney will say that he or she has to sift through the emails and figure out what is privileged and what is not. I think it would be best to instead wait for the lawsuit to be filed and discovery to begin. If Guy wants, he can have his personal attorney write the former President and instruct that, pursuant to such and such law, all documents must be preserved, pending suit. It is a common tactic pre-litigation. Meanwhile, at this point, I believe it is appropriate for Guy to communicate to the other two board members on this issue only via his attorney and the HOA attorney.

At this point, I am at a loss as to where Guy thinks he is going to find money to pay for all his losses. If he thinks he can bankrupt the former volunteer directors and extract his pound of flesh this way, on grounds they were incompetent, then this will be one helluva long lawsuit. I think he needs a serious reality check with a competent attorney.

What happened to Guy is terrible. But I think it's one of those HOA instances where justice may not be available.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 05/15/2018 3:52 PM

I say his chances of personal recovery from former BOD members is a slim to no chance. His chances of recovery from the HOA are stronger. If it happens then the BOD (including him) will have to figure out how to pay. Talk about shooting yourself in the foot...LOL

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC46 on 05/15/2018 4:18 PM
I say his chances of personal recovery from former BOD members is a slim to no chance. His chances of recovery from the HOA are stronger. If it happens then the BOD (including him) will have to figure out how to pay. Talk about shooting yourself in the foot...LOL

Right. This is worth playing out.

Suppose Guy takes the HOA to court. The HOA attorney's fees cost at least $16,000. A Special Assessment is imposed: $2000 per member (nine members excluding Guy).

In the best case scenario, the judge awards GuyM1 $80,000+ for damages and attorney's costs. Tack on another $10,000+ of Special Assessment per member.

Or Guy could lose outright. Like the driver who hits one's car and has no insurance and no money to pay for the damages. Guy will be about a lot of money, having paid his attorney a fortune. To me, this lawsuit of his is a huge gamble.

This will take a few years to dispose of via the courts. The stress on all will be high. Members will not understand what is going on. It will drag on and on. Despite the controversy, I do not seen signs of anyone intelligent coming out of the woodwork and running for the board (apart from maybe the three now on the Board).

If I were in Guy's shoes, I would be depressed but somehow try to regain reason and figure out whether the goal should be to cut my losses and withdraw from this battle. One way to cut losses, yet not lose completely, may be for the HOA and Guy to agree to mediation.

JeffS28 (Tennessee)
Posts: 29

Posted:

I agree let it play out and stay on the board.

GuyM1 (Ohio)
Posts: 318

Posted:

Just to hopefully clear some of this up. The suit is against the HOA Association for the previous boards Breaching State condo law and the Associations documents. To repair all damages to the common area, my unit and put a claim in against the contractor that installed the new siding improperly which has caused damages to common area and my unit plus the mold issue. The board did nothing even after Insurance and inspectors proved that they were negligent in maintaining the common area with both Insurance and inspector showed mold in their reports. After these reports, the Association had two other mold issues and remediated them immediately but not mine. Also, the suit goes personally after each board members for Breach of their Fiduciary duties, breaking State condo laws and Association documents, lying in court Affidavits, depositions, court testimony and the damages they caused the Association members. If the foundation and slab sinking were fixed, the damages that occurred after would have been less and this is also, true with the new siding that if they would have had the improper siding fixed it wouldn't have caused all the damages and mold. We're looking at the Insurance company making an offer for the Damages to me from the HOA and that the members to pay for all common area and my unit damages. Now with the individuals looking for damages to me and possibility of them paying for the members damage costs. any assessment wouldn't include me. The last case I was not assessed in the Association assessment. Now I'm not a lawyer but tried to explain the best I could. There are other personal damages that happened to me during this whole time.

Thanks, Guy

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GuyM1 on 05/15/2018 8:37 PM
We're looking at the Insurance company making an offer for the Damages to me from the HOA and that the members to pay for all common area and my unit damages.

So the HOA insurer is back in the picture, and the claims adjuster or an attorney (paid for by the HOA's insurance company and representing the HOA) is involved? If so, that changes pretty much everything I wrote, in a good way and in your favor. HOA insurance companies want to settle. They don't care who was wrong. They'll do anything reasonable when it comes to paying money to someone reasonably claiming damages.

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