Abuse of Authority Malfeasance

Home Owners Association:

Good Day: I am certainly not new to Associations, Boards, Committees and their related problems as I am 70 years old and have been on a County Board for years and various committees. In addition to that I have been in the Real Estate and Development Business, owning our own company for years. In this time period I have been the Declarant of numerous HOA's prior to transition.
This surely doesn't make me an expert but in 45 years I thought I saw everything.

As I have a small Hobby Farm in Wisconsin and this Association is in southern Alabama you can imagine the logistical problems.

My wife and I bought a piece of property in this "Subdivision" on the river. As we were one of the first buyers and no HOA was in place, I notice the BY Laws and Covenants and one Amendment was over kill for a basically recreational community

I went to the Declarant and expressed my thoughts and as two men having had extensive experience , I explained the potential problems that as they were a National Developer, used a.BOILER PLATE set of rules for ALL their developments. I explained these By Laws were more suited to an exclusive golf course community. He admitted as much but as his job was to sell out the project he assured me that it would all work itself out. He and I knew that problems would arise and as he was the soe DECLARANT prior to any formation of a HOA he had the authority to grant me an exclusion or exemption to a certain part of the up coming By Laws.
He asked what I needed, which was because of the 1,200 mile one way distance and the fact I had bought an acreage RECREATIONAL Lot, not a WATERFRONT lot I would be able to use my RV 120 days a year on a Calendar Year basis. I told him I would like to build a storage building to store the RV in when not in use
He agreed to this but asked for some sort of rendition of the building. I explained to a neighbor that I was going to meet with the Declarant on this issue, she too had this concern and asked if she could be there. It just so happened that the Declarant was inspecting the property on an ATV and we stopped him on the road. I showed him the exact building I would like to build as well as it's intended usage. He drew in a couple of suggested changes and initialed it and said OK. The neighbor was a witness as well as my wife.

This worked great for over 6 years. We came down in December and left in April storing our RV until next year. I put $22,000 in improvements, septic, well, electric, well etc. This survived 3 board changes including the present board.

The Board is non compliant in their formation and as the only authority is the Chairman who is absent a minimum of 6 months of the year and has not designated a co chairman so the meeting is called , opened and Chaired by the Treasurer who also doubles as secretary as the secretary is a token woman.

The Chairman had use of my land up until this year that I found he was abusing this privilege and and asked him to no longer trespass my property. This angered him and he fancies himself a real bully, He waited until myself and one of the board members parked my RV for the year and "UPDATED THE BY LAWS" , a term I have never heard in 45 years.

He attempted to not acknowledge my exemption and include me in the HOA and put restrictions that caused me to remove my RV and now sell my property.

Attempting to find an Southern attorney for a person from Wisconsin proved to be a daunting task. I retained an attorney here and the attorney they hired down there is very aware that a Wisconsin attorney can ask for information but told her I was wasting her time and my money.

They were to have a board meeting in October and we were told by the Treasurer that meetings of those minutes would be distributed in January when he payed the bills. The Chairman was in Wyoming and do not see how a meeting was held but told this was common practice. I asked that a letter be read regarding my exemption and include in the minutes of the meeting. I wanted to do this for years but each board Chairman and board assured me that my building and usage was in place way before an HOA was formed and no need.

I have the drawing, the time frame, an signed, notarized affidavit am getting nowhere.

I am a combat decorated Veteran with Disabled Citizen Classification. This an a dollar gets me a cup of coffee at the gas station..
Any suggestions???

Thanks, Lee Rigby

Bylaws and other governing documents can be amended, the process for that should be in those docs, and possibly governed by state law too. In some cases the docs allow the bylaws to be amended by the board, but more common would be something like a majority of voting interests at an annual meeting with a quorum in attendance. The CCRs/Covenants/Deed restrictions typically have a more difficult path to amendment, often 2/3 or 3/4 of all voting interests.

The bylaws generally govern the operation of of the association corporation, things like when meetings are held and what officer duties are. Use restrictions would need to be in the covenants, so unless they have gone through the proper procedure to amend, they would not have changed, so the chairman's rants are just that, empty rants. Most covenants provide an approval process for changes/variations, and since the developer was acting as the approving authority (typically ARC), you appear to have a valid approval. It's also possible that any statutes of limitations to either challenge a variance or a violation of the covenants has passed.

It appears to be bluster so far, one option would be to wait and see if they actually try to fine or pursue legal action. The other that you appear to be following is to proactively have a lawyer review the case and probably send a letter to the association stating the opinion that the association has no authority to stop you from parking the RV and to stop harassing you.

Shoot - forgot ... what you are calling this situation is waaaay more than it is ... IMO this is simply another HOA finding its way toward self governance. With enough work, volunteer spirit and personal involvement on the Board of Directors, you will work it out.

Thanks, Douglas. There are clear definitions as to how. the board is to be set up with the use of 4 entities. Board od Directors, Board Members,elected officials and ARC. They have only a Board.

Yes you are correct, if I were to stay down there, I would wait it out and wait for them to seek remedy by court order of which no judge would rule in their favor.

I was just trying to speed it up and get it defined so it would not cloud the sell of my property. It really makes no difference as they have the property value so depressed I will lose money anyway so why throw more money down the drain. Thanks again. Lee

Thanks, George. No I have been through all documents and even the amendment. The board has never been formed correctly and takes bits and pieces from the original without cross checking the amendment for starters.

I could easily just wait this out until they would need to sek remedy which is a court issued injunction. There is no judge that would not find in my behalf. This was created well in advance of the HOA and they have never created an ARC anyway.
I just wanted to get this out of the way so no cloud nung over the issue as I am selling the property.

We are waiting for the minutes of a meeting that was to have my letter and facts entered into the minutes which would secure my position but the meeting was in October and they do not plan to send out minutes until January.. Screwed up for sure. Thanks, Lee. Reference to "token woman" is their mentality not mine. My wife has been my business partner for over 40 years and my wife for 27. Other than certain combat situations I think woman demonstrate a superior business asset.

Augustine, very well stated even if it it does present an oxymoron!!! The Declarant was the one who issued me the permission prior to turning over the HOA so it is not even in their jurisdiction to question, you as well as I know the in this situation, Cream does not float to the top. However the "Peter Principle" becomes very evident. Thanks, Lee

But, NOT created in advance of the Covenants and Restrictions

Said restrictions may very well STILL apply to your property.



IMO: sell ..... move along ..... next time: CAVEAT EMPTOR