Board claims they can decide what is common

hello,

we are a condominium community in houston texas.. apartment style. all of the first floor units were flooded by harvey.. becasue we are not in the flood zone. we were not required to have flood insureance.

my question is... if the declaration clearly specifies what things are owners responsibility and what things are hoa responsibility...

can the board decide, at their discretion to use common funds for things that are not and have never been the hoa responsibility.. Despite numerous protests from owners.

here is the exact response the board president sent in an email.. in response to the question from a displaced homeowner.

Why is the 1st floor paying Monthly dues even though we cannot live in our units?

here is her response....

" board has cut back on all unnecessary expenses in order to save money and apply the funds towards rebuilding a neglected flooded property. The board has taken into consideration that the 1st floor homeowners have paid for monthly dues on units they do not live in. To show the homeowners their dollars at work, board has decided to include in the HOA portion of the rebuild the Sheetrock of the outer walls, the mold testing of the 1st floor and some electrical outlets of the common walls. These items would normally fall under the homeowners responsibility. People who fall behind on their monthly payments risk the possibility of foreclosure."

ok, I am certain this is illegal.. the board doesn't get to decide what to use common funds for!!!.. .. when 2nd floor owners insisted that was not allowed,, the board said the following

"This is a community property where all costs are shared by all the residents in all the buildings and in all floors. There are some items the bylaws say are the homeowners' responsibility, such as front doors and windows. The board has the discretion of deciding to declare community property some items that would be difficult to separate or would cause delays in the process of rebuilding, such as electrical outlets found in common walls."

this is so patently ridiculous and so clueless, first of all, ,, all costs are not shared by all the residents on all the floors,,!!,, common costs are shared.!,, she literally doesn't know what she is talking about.... and then for her to say that the board can declare community property some items that would be difficult to seperate.... um,, they board is paying per unit.. it wasn't too hard to seperate,.. In my opinion this is just doublespeak , her trying to have some plausible explanation for why the board decided to change who is reponsible for what... Of course,,when I and other owners have protested and insisted that the board can not do that. She says either,,yes we can we asked the hoa lawyer what we could and couldn't do,, and the they claimed the lawyer told them, they can pretty much do whatever they want as long as it passes the business judgment rule..... THIS IS WRONG!. i know it's wrong..

Can a few of you chime in here,, please confirm, that what the board is attempting to do is absolutely prohibited.. the declaration clearly states who is responsible for what, and says that there can be no change or alteration to the responsiblities without a change of the declaration which requires 2/3 owner approval....;

one of the ridiculous arguements the the board tried to when they informed the owners (out of the blue) they were going to hire a mold inspection company to give owners certificates..(even though it's a year later.. and the units have already been taken down to the studs since last september) at a cost of over 50,000,, and the board was going to pay for that out of common funds,, because,, " mold is a health issue for everyone, and it can spread throughout the buildings.." yet ,, they aren't requiring mold testing for second floor units.... !!..

comments?? I guess,, because many of the posters here, obviously have experience with different hoa's and the conflicts and issues that arise.. i'm wanting confirmation that based on what i've written,,the board is definitly acting outside of it's legal authority ,... HELP!

thanks for your reply, I must have not explained correctly.

I never said we would stop paying our assessments.

I specifically am asking, can the board change the contractual obligations of repair and mainteance as outlined in the declaration..

the answer to this question is obviously no.. because changing the declaration requires an owner vote.

The first floor units are not common areas.. how in the world could first floor units be considered common property.. we have 244 owners. 122 downstairs and 122 upstairs..

Adding to what Melissa said, mold IS a serious issue and the association is likely trying to avoid future lawsuits and liability by being proactive. If mold does turn up in the future, they can produce the paperwork showing that the issue was addressed at the time of rebuilding and any subsequent problems are due to something else.

I also agree about unit owners continuing to pay the monthly assessments. The monthly assessment pays for common expenses, and these expenses haven't stopped. It's no different from any disaster that keeps you out of your home while rebuilding occurs. You don't stop paying your mortgage or other bills during that period.

As for paying for repairs that would normally be the homeowners' responsibility, that may or may not be OK. My association has "all in" insurance coverage, and if there is an insurable loss, our insurance may in fact cover things that ordinarily are the homeowner's responsibility to maintain. This may well be the case in your community. You need to 1) read your governing documents to understand what happens if rebuilding is necessary; 2) check insurance coverage (this is complicated, since it will involve multiple insurers); 3) consult with your own attorney if you still think that the board isn't acting properly. Natural disasters always raise issues that people aren't used to dealing with, and I would hope that the board is receiving guidance from the association's attorney and insurer. I always believe in paying for expert advice upfront since it's less costly than dealing with the fallout of doing things improperly.

Adding to my comments about insurance, our association's agent told us the following: Picture an individual unit as a closed box. Now turn the box upside down. Anything that falls will be the homeowner's responsibility; everything else that is fixed (cabinets, toilets, bathtubs, lighting fixtures, etc.) will be covered by the association's insurance. It's counter-intuitive since ordinarily the homeowner is responsible for those things. It's no wonder everyone is confused by this.

oh melissa,,, i wish it were just splitting hairs..

the reason we are up in arms, is because the board chose to pay for things that were not within its legal authority to pay for out of common funds..

we're not talking dimes.. the board spent 216,000 on interior unit cleaning.

however,, 90 percent of owners had already had their units professional gutted, treated , dried out and tested! all at their own expense.

Then along comes the board , and despite owners objecting to this company coming in and acting like they cared about our homes etc.. this company literally invoiced for units that were actually already rebuilt!.. they billed for units that had already been cleaned, treated , tested and permitted... after finally getting the actualy invoic copies from the managment company,,, it turns out this company billed for every single downstairs unit ... 125 out of 126!...

so the reason we are splitting hairs,, is because this isn't just splitting hairs.. this is gouging and fraud.. It's one thing for the board to choose to do something that isn't clearly allowed ,, it's another for them to overpay for the service and it's another altogether when we find out, the board , nor thier so called project supervisor bothered to take inventory of the individual units beforehand.. I literally could not believe it.. How can noone have done an accurate assessment before this" proven restoration " company came onto the property..

.To top it off, how can the board have approved the payments for those invoices without realizing,, hey, they billed us the maximum amount for every single unit..

And this is on top of the board spending 366,000 on foundation repair!. despite the engineer of record for the last 30 yrs on our property strongly suggesting against doing any underground pier work..
despite 3 other foundation companies coming and and giving us their recommendation that at most,, 3 buildings may, need some minor work.. .. yet the board president hires some out of town professor to come and do his independent analysis,,and his suggestion was 22 buildings needed underground piers!...