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HOA won't make repairs to common hot water boiler

Started by TeresaM4 • 24 replies • 2297 views

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TeresaM4 (Texas)
Posts: 7
Posted:
Good afternoon. I own a unit in a condominium complex that has common plumbing and a shared hot water boiler. The HOA pays the common water bill for all units out of HOA funds. Our hot water boiler repeatedly breaks down, leaving all fifty-six units on our property without hot water, sometimes for as many as three days at a time. The boiler is no longer being manufactured and replacement parts are difficult to find. In March 2017, while I was serving on the board, I moved to replace the boiler. It had gone out several times that winter. I ordered bids for a new boiler so that we would have an idea of the cost involved. The other two board members refused to agree to spend the money to replace the boiler, even though we have more than enough money in the reserves to pay for a new boiler. Twice a month, sometimes more often, we end up without hot water. Today we're on day two of no hot water. Homeowners addressed the issue at the annual meeting in April. The board promised to get a new boiler. Still nothing has been done to rectify this situation. What recourse do we have to get the HOA to take care of its responsibility to maintain the boiler and ensure we have hot water in our units?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You are ALL members of the HOA. So your asking what it takes for you and your neighbors to purchase a water boiler? Seems like the answer is cooperation and an agreement of majority of neighbors to it. You may need a special assessment to pay for it. As reserve funds will have to be replenished if you do use the money from it. So it may be better just to special assess for the replacement.
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
It's the Board job to protect and maintain the common areas & assets of Teresa's HOA. They need to find a way to pay and Teresa says there are ample funds in reserves for its replacement. But even if that drains the reserves, there are ways to replenish them. The point is, the boiler must be replaced.

Teresa, doesn't your Board have open board meetings when a bunch of you would attend and demand they do their job? Being without hot water so often might even be considered a heath hazard. Maybe the County Health Dept. can apply some pressure??? Is the annual meeting of members the only time you can communicate with the Board?

Why does the board say they refuse to replace the boiler? What is your guess, Teresa?

If a lot of you who've banded together to demand this basic service, and the board ignores you, then you might have to recall the board or vote them out at the next annual meeting. Or, but costly, sue them for failure to enforce your governing documents.

Luckily, we have some good posters from TX, who may be helpful.
JanetB2 (Colorado)
Posts: 4,219
Posted:
The members could let the other two BOD members know if they do not get off their tails and properly perform their job they can and will be recalled and replaced. Or potentially members can call a Special Meeting for the sole purpose of voting to replace the Boiler and if enough members show up meeting your Documents and State Law requirements can vote via membership to replace. Sometimes ignorance by some BOD members in not taking proper care of the properties is reprehensible ... they have a fudiciary duty. If an owner ends up suing then those BOD members could potentially end up with some personal liability.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By KerryL1 on 07/13/2018 3:03 PM
If a lot of you who've banded together to demand this basic service, and the board ignores you, then you might have to recall the board or vote them out at the next annual meeting. Or, but costly, sue them for failure to enforce your governing documents.


Quote:
Posted By JanetB2 on 07/13/2018 3:15 PM
The members could let the other two BOD members know if they do not get off their tails and properly perform their job they can and will be recalled and replaced. Or potentially members can call a Special Meeting for the sole purpose of voting to replace the Boiler and if enough members show up meeting your Documents and State Law requirements can vote via membership to replace. Sometimes ignorance by some BOD members in not taking proper care of the properties is reprehensible ... they have a fudiciary duty. If an owner ends up suing then those BOD members could potentially end up with some personal liability.


I agree with KerryL1 and JanetB2. Not having hot water on a regular basis is serious. If I were a member at the OP's HOA, then I might be talking to an attorney at this point.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Why speak to a lawyer? Why not speak to a company that sells Hot water Boilers and skip the "middle man". If they have the bid in their hands, then it's time for them to pull the trigger. We required a 3 bids on every contract. So someone get 2 -3 bids, give it to the board.

Besides... If they are board members, they are also owners... So are they not out of the hot water too?
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
Teresa WAS on the Board, but is no longer. She DID present bids to the board when she was on it. I doubt she or any other homeowner has the authority to approve bids. But she with perhaps a group of others, present these bids again to this board.
JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Posted By MelissaP1 on 07/13/2018 6:34 PM
Why speak to a lawyer? Why not speak to a company that sells Hot water Boilers and skip the "middle man". If they have the bid in their hands, then it's time for them to pull the trigger. We required a 3 bids on every contract. So someone get 2 -3 bids, give it to the board.

Besides... If they are board members, they are also owners... So are they not out of the hot water too?

Because in some cases it's better to just apply pressure via an attorney that try to go around and get 51% or whatever the requirements are in OPs docs to force an unwilling BOD into action.

You would prefer that people never use attorneys and always go through this onerous process that isn't even doable for everyone. I simply would not even want to TRY. Half the owners don't even live here. I could burn up money that could go to an attorney simply tracking them all down. And God knows how many man hours.

All to get hot water? I can't speak for OPs situation, but here that would be madness. No, if we weren't getting water, I or someone/s would absolutely get an attorney.
JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Posted By MelissaP1 on 07/13/2018 2:41 PM
You are ALL members of the HOA. So your asking what it takes for you and your neighbors to purchase a water boiler? Seems like the answer is cooperation and an agreement of majority of neighbors to it. You may need a special assessment to pay for it. As reserve funds will have to be replenished if you do use the money from it. So it may be better just to special assess for the replacement.

You can't know that w/o knowing their financials and the cost of replacing the boiler. Not every association is like yours where $1500 is 'hard to come up with'. There might be plenty in there and the regular dues will replenish it over time, depending on many factors.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The answer still is whether you go to a lawyer to make it happen or not, to get bids/contractor to do the work. My point is why waste money on a lawyer if this is ultimately a YOU and YOUR NEIGHBOR'S decision? Seriously, your going to hire a lawyer to sue yourself and your neighbors (FACT) so you can force you and your neighbors to pay for a replacement??? Think about this...

It basically sounds like a no one is willing to pull the trigger. Which isn't unusual in a large group. It's like you are all frozen in making a decision due to the overwhelming issues. No one is taking the lead. Someone just has to step up and take the reigns or your group will all stay "frozen". One of the hardest changes to make is cultural. Your HOA's culture may be that it's just not put together well enough to have anyone willing to step up to spear head this project.

Example: When I took over my HOA, we had a pool area desperate in need for help. The gazebo was too dangerous. The fence was falling apart. People could just walk through some sections. The railroad tie road was collapsing. Completely dangerous to use the pool area. It had been this way for years. None of the previous boards took action. We were broke and the project would cost thousands of dollars we did not have.

I found a contractor to help tear down the gazebo/retaining wall. Plus had them install the new cinderblock one. Part of the fence had to be replaced after the gazebo was taken down. So we made that area a back entrance. I laid down new entrance stones. Plus got some volunteers to paint the fence. I supplied a sprayer and had the HOA buy the paint. The pool looked GREAT afterwards.

So it really ended up not taking a lawyer to force the HOA to take action. It just took someone willing to take on the project to get it done. If you don't have someone, then be that person. In a HOA, your ALL neighbors. So you all need to treat it like a NEIGHBORHOOD! Step up or step down... Step up you get the job done. Step down, you wait till someone else steps up... What are you the one that runs to a lawyer to step up someone else's step?
Former HOA President
JenniferG11 (Texas)
Posts: 667
Posted:
Going to a lawyer does not = a suit.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
It does equal your HOA contacting their own lawyer to respond to whatever you have your lawyer write them... Plus they most likely will take it as a possible lawsuit and react in such. Which translates to money that could be used for this project, is now going to a legal defense...
Former HOA President
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By MelissaP1 on 07/14/2018 6:20 AM
It just took someone willing to take on the project to get it done. If you don't have someone, then be that person


When the board majority does not understand its obligations vis-a-vis the governing documents, and a situation as serious as this has arisen, with people interrupted regularly in the quiet enjoyment of their homes, then I think the best route is to hire an attorney. Use the attorney to "negotiate." A good attorney won't be threatening. Instead, he or she will ask questions. This can get the ball rolling a lot quicker. Importantly, it's also a relatively low-cost education for the board.

JenniferG11, it is nice to have you posting here.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By MelissaP1 on 07/14/2018 10:22 AM
It does equal your HOA contacting their own lawyer to respond to whatever you have your lawyer write them... Plus they most likely will take it as a possible lawsuit and react in such. Which translates to money that could be used for this project, is now going to a legal defense...


The HOA WOULD NOT have that potential issue if the BOD had followed their Fudiciary Duty to 1) Make sure funds were available for future Boiler Repair, 2) BOD had Voted to properly to replace and/or fix the Boiler Issue so homeowners would NOT be without proper hot water, 3) if the BOD has not approved after multiple number of times of current boiler failure (which can be traced by X numer of member testimony) ... potentially the BOD has failed in their Fudiciary Duty towards the HOA. Again, if a homeowner ends up filing a lawsuit they should also NAME the BOD members for their failure to provide required and necessary services. Which in turn could make those BOD members “personally” liable to some extent with regards to lacking the proper Hot Water. Even our Constitution allows for Life, Liberty, and the Pursuit of Happiness ... so where is a homeowner happy without the HOT WATER which they are charged and pay for with their Association Dues???
GeorgeS21 (Florida)
Posts: 3,808
Posted:
Get a full up chronology of the loss of hot water - every single instance for as far back as possible - contact every owner and ask them to provide specific dates, times, etc.

Interleave the various contacts with the board and officers and other members ...

Put it all together as an attachment to a tersely worded letter noting your options and how it will likely affect the Board and the HOA - make sure it is hefty and full of damning EVIDENCE ...deliver it three documental ways to all Board members and to every resident.

Start a recall on the Board members who are thought to be most at fault - have volunteers to fill their positions ready.

Attend the next Board meeting en masse.

Interview an attorney, find out the costs of their involvement and ensure this is discussed enough the Board members hear it.

Prepare to sue - Prepare to deal.

Do whatever is required.

Oh yeah, and set timelines for each phase.
JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Posted By MelissaP1 on 07/14/2018 10:22 AM
Which translates to money that could be used for this project, is now going to a legal defense...

What do you imagine the legal defense to not replacing the boiler would be? And if they put the money towards the project, there would be no legal arguments happening.

JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Posted By AugustinD on 07/14/2018 10:40 AM
Posted By MelissaP1 on 07/14/2018 6:20 AM
It just took someone willing to take on the project to get it done. If you don't have someone, then be that person


When the board majority does not understand its obligations vis-a-vis the governing documents, and a situation as serious as this has arisen, with people interrupted regularly in the quiet enjoyment of their homes, then I think the best route is to hire an attorney. Use the attorney to "negotiate." A good attorney won't be threatening. Instead, he or she will ask questions. This can get the ball rolling a lot quicker. Importantly, it's also a relatively low-cost education for the board.

JenniferG11, it is nice to have you posting here.

Thanks! I appreciate this site and all the participants.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
What is the lawsuit for? Where you going to take this in court? Is it a small claims or higher court. Considering this is a replacement that is most likely MORE than a small claims, then it has to go to the higher court. Plus that most likely is where enforcement of making the HOA rules has to take place. This is a more expensive and time consuming court process. Plus the HOA would have no choice but to hire a lawyer. Win or lose, they still have to be represented in court.

The court system can ONLY make one "Whole". So you would have to prove damages. What are those damages? Usually that is money spent out of pocket to correct the situation. Pursuing your HOA to spend money on a project may be damage. The end result? Your still making the HOA spend money on the project if you win. Which there is the alternative of NEVER going to court and getting a majority of owners to take action instead. That cost no money and makes changes you want in your HOA. It's just NOT the easy route...

So the choice is yours. If it were me, I would get a group of like minded owners to approach the board and present bids for a new boiler. State your case. See where it goes and be prepared to vote for a special assessment to make it happen. If you STILL want to hire a lawyer, then don't do it alone. Do it with that same group of people who want the repair. It's much better to do this as a group than an individual. Your still suing yourselves and your neighbors, but the expense is lessened. Plus there is power in numbers. Which if instead of hiring a lawyer as a group, that group could follow the HOA rules, and get rid of the board instead.
Former HOA President
JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Posted By MelissaP1 on 07/15/2018 6:27 AM

The court system can ONLY make one "Whole". So you would have to prove damages.

This is not true. They could sue for breach of contract, and the remedy is replacing the boiler so they can have hot water. There is no requirement for monetary damages to go to court. Which is a hypothetical, as no one said to sue.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
You hire a lawyer the HOA has to hire one to respond. Same expense. I personally would not be intimidated by a lawsuit brought against my HOA. Know better than knee jerk react. The reason to hire a lawyer or threaten a lawsuit is to intimidate. Some HOAs fall for it. Causing lots of extra expenses. I would simply listen to owners request and then put out the facts of the decision. Let the owners decide if they want to pursue, then that is what I do. Never needed a lawyer totell me what to do with my HOA. Matter of fact, lawyers were intimidated by me..

I did go to college and took some legal courses. Criminology and basic law. So know afew things. Hence why I never ever jump to a lawyer as a response.
Former HOA President
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By MelissaP1 on 07/15/2018 6:27 AM
The court system can ONLY make one "Whole". So you would have to prove damages.


Seeking injunctive relief does not require either a claim or showing of damages.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Guess what else doesn't? Working with your neighbors to get what you want. Who knew? Wait your CC&R's and By-laws knew! Why it's like if you READ them you would see your answers for making changes in your HOA isn't from a courthouse/lawyer. It's from YOU and YOUR NEIGHBORS! Don't like that answer? Well it's because you don't like to do the WORK it requires and it's all an excuse to put it off on someone else.

Guess my issue when I hear someone "Hire a lawyer" each and every time, is just a cop out. Heard plenty of posters in here running to a lawyer instead of to their HOA office/Neighbors. They don't want to do the work it takes to make the REAL changes in their HOA.

Now I have had to hire a lawyer before when my new board did something wrong. So yes, I have been there. However, the circumstances were that it was a GROUP of us owners who got together to make the board do the right thing. It was NOT an individual and it was not a lawsuit. The letter was complete reference from the documentation on how to properly pass a Special Assessment. We still lost as the special assessment did pass. It just made them do it the right way. (It was later found out they lied to everyone to make it pass).

So I don't advocate threatening to sue your HOA. I do advocate acting a group of like minded individuals and addressing the issue with complete reference from your own documentation. Yes, I can see where it may take a strongly stated letter from a lawyer to do so. It's just that it should be end goal related and within scope of the HOA's responsibility. Things can go off track easily once you contact a lawyer...
Former HOA President
JenniferG11 (Texas)
Posts: 667
Posted:
Quote:
Yes, I can see where it may take a strongly stated letter from a lawyer to do so. It's just that it should be end goal related and within scope of the HOA's responsibility.

Glad we are all on the same page now. No one suggested anything beyond this.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By MelissaP1 on 07/15/2018 6:27 AM
The court system can ONLY make one "Whole".

Another fallacy you continually spout. Look up "specific performance".
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By MelissaP1 on 07/15/2018 9:03 AM

Now I have had to hire a lawyer before when my new board did something wrong. So yes, I have been there. However, the circumstances were that it was a GROUP of us owners who got together to make the board do the right thing. It was NOT an individual and it was not a lawsuit.


Melissa ... that is the issue. The BOD has not even after many instances of there being NO hot water and knowing that the Boiler needs to be replaced ... they have NOT performed their duty to properly replace. The OP when was on BOD even obtained many price quotes and still could not get the BOD to act and agree to replace even when they have money in Reserves and which the reserves should have considered the potential future cost for replacing the boiler. The BOD has not yet approved over a long period of time ... therefore, the potential need to have an attorney address the issue. Sorry, but you seem to have tunnel vision regarding getting an attorney vs looking at the whole picture and potentially why may be needed.

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