Onerous Legal Language in HOA ACC Form?

Started by DanM12 • 8 replies • 537 views

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DanM12 (Georgia)
Posts: 25

Posted:

The HOA Board recently hired a management company and they've gone crazy sending on violation notices. I've never gotten a notice in the 10 years I've lived here. Today I got 5.

It's all pretty minor stuff, they can see my trash can on the side of the house, my window trim needs touch up paint, etc...but they seem to have changed some procedures, language and fine amounts without any amendments to the ByLaws or articles (that I know about). And this is stuff they've let slide forever.

So in the notice it seems to be implying I have to submit an Architecture Control Committee approval form to touch up my trim paint, even if its the same color (white). I think that's overboard, It's a pain, but whatever, ok. But then I read it and give myself pause.

The part I really object to is this last line in the approval submission document:

"I hereby release and covenant
not to sue ALL the foregoing from/for any claims or damages regarding this request or the approval or denial
thereof."

I don't feel I should have to waive my right to sue should they, say, capriciously or unduly deny my application but hold me in non-compliance.
It doesn't seem right to have to waive rights in a form I'm required to submit like this.

Also, they state they can fine you $200 if you start work without approval, but I see nothing in the ByLaws or Articles that says that. There's a list of fines that says $25/day for violations, and $100 for ripping out a tree without approval. They also say I have to get both my adjacent neighbors to sign off on the form, which has never been a requirement previously.

(A little background is that this manager was hired, even though the last two Annual meeting had to be adjourned for lack of quorum, and therefore I know we didn't vote on any amendments to those governing documents...I suspect they've NEVER had a quorum, and no one in 20 years has called them on it except me, but that's a seperate, bigger issue...

Bottom line, the management company seems to be pulling these fine amounts out of thin air and inventing/inserting legal language, without approval of the members.

Am I in the wrong wrong to object to this? Is this boilerplate stuff? Can the board unilaterally make these changes?

I don't object to pulling weeds or touching up trim, but don't want to sign the submission document as written.

How should I proceed?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The fine amounts aren't in your by-laws or documents. The ability to fine is. However, fining is a separate thing usually covered by what is called a "Fining schedule". Which every member should know. That fining schedule is to define the fine amount for each violation. Like leaving trash out on Wednesday is $25 etc...

As far as trim painting... White paint is NOT created equal. It does matter. Our HOA you can't have "White" paint. It's an assigned specific off-white. The original formula was named "Sawyer Fence". However, paint companies change their names/formulas ever 5 - 7 years. So have to find out the "new" name or original formula which the ACC should have. There is also the brand of paint they may require and years it is to last etc... Paint ain't easy.

Your MC issuing these violations must be a new change the board has requested they do. The board is responsible for this. However, they may hire the MC to do the work for them. Hence why the MC is now doing the job. So until that relationship or contractual requirement is addressed, your going to see plenty of MC issued letters.

Former HOA President

ND (PA)
Posts: 792

Posted:

I suggest not filling out or signing anything at this point. If you received 5 letters, there are probably tons more out there and pretty soon a wave of neighbors will be beating down the doors of the MC and Board.

Forms of that nature are (or at least should be) for changes/improvements to what currently exists (e.g., installing a deck, painting house different color, etc.) . . . they're not to be filled out for maintenance items . . . that's just ridiculous and onerous for all involved (homeowners, Board, MC, Arch Review Committee). Moving your trash can does not requiring filling out a form. Touching up trip paint with the same color does not require a form. Pulling weeds does not require a form.

Perhaps the MCs contract with the Board gives them a kickback/fee for each violation identified and tracked to closure . . . although a completely idiotic thing to be included in a contract, it wouldn't be the first time. The MC is incentivized to find as many violations as possible (most nit picky crap like this) to maximize profits. They don't care about the strife being caused within the neighborhood or animosity between Board, HOA Members, residents. It actually helps further necessitate the MCs involvement in that HOA.

Further, nothing should be implied by the form or process. The form/process should state what is allowable and required so that members can follow the rules and nothing is uncertain/questionable. If there is uncertainty, ask the MC what is actually required for your specific situation. Your HOA's governing docs should support whatever forms, process, and fines are being put out there. If they don't, suggest gathering a bunch of your neighbors, attend the next Board Meeting, and ask questions.

If all of your issues are maintenance items and easy enough to correct yourself in a quick fashion, then I suggest replying to the MC/Board, acknowledge receipt of the letters, let them know your plans and that you will take care of the maintenance items by a certain date, then just be done with things. If you received 5 for minor stuff, others have likely received more and for more severe infractions. Let those owners battle with your Board/MC.

But do retain all correspondence you create or receive in regard to these things for potential future need.

SheliaH (Indiana)
Posts: 6,964

Posted:

Homeowner approval of the submission form isn't required. It may be this document is some sort of template the company uses with all its clients, and since it works at the board's direction, you need to take that up with them. Perhaps the association attorney can draft a submission document that's unique to your community and this language can be deleted.

As for the board making changes like this, there's probably language in your documents that give the board power to enact additional rules and regulations as long as they don't contradict the Bylaws or CCRs - read them to be sure.

As part of the management company's contract with the association, it probably calls for rule enforcement, which many boards don't have the time (and sometimes the stomach) to do. The company works under the board's direction, so there may be certain areas of enforcement the board wanted to concentrate on first. That said, it would have been better to notify all homeowners more rule enforcement was coming and how the management company would play a bigger rule, but you're responsible for complying with the rules regardless.

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

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hey Dan

The Board decided that the place was looking a bit raggedy. So they found an MC that would impose some discipline. The MC didn't customize anything for your HOA. They just applied some standard procedures that they use in other HOAs.

Of course, the the Board is going to get pushback. And then maybe they'll relax this or that depending on their noise tolerance.

In your shoes, I'd be interested in finding out how well-equipped they are to respond appropriately to those who follow the new rules.

Here's what I would do:

- Make 2 piles. The trashbin notice goes in pile 1. The trim paint notice goes in pile 2.

- Go ahead and do the things in pile 1. No need to respond.

- For the stuff in pile 2, sign the form; write the words"signed under duress" underneath your signature, and send it in.

- See what kind of response you get.

The words "signed under duress" says that you are only signing it because they say you have to even though you don't agree.

What you want to find out is this: Even if you play their game, how long is it going to take to get their approval. This is the true test of whether your Board has actually thought things through.

My HOA has spent a lot of time thinking about this issue:

- We want a form completed by the homeowner because we want to know what trucks to expect on site and we want a copy of the contractor's insurance certificate and a copy of the township permit if required. Has nothing to do with looking over your shoulder. Has everything to do with protecting the community.

- For simple stuff like planting a tree or painting some trim, homeowners get a same day approval.

That's how we do it. But what's it going to be like under your new system? If your form is going to need review at the next Board meeting, then that's way to burdensome on ordinary maintenance stuff.

You will be doing your Board a favor by pushing the idea that homeowners need a quick turnaround on simple stuff. And the best way to do that is to demonstrate that it works or doesn't work.

Others will just refuse to sign. Which gives the MC and Board an out. Don't give them an out. Force them to deliver an answer in a timely manner or acknowledge that they can't just impose demands - They have to deliver too.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.

DanM12 (Georgia)
Posts: 25

Posted:

Just want to say thank you for all the fast, thoughtful replies. I stumbled on this site on a google search, and its already seeming like a great resource. Some good ideas here already.

Like I said, I don't really have problem with taking care of the issues, ( the weeds need pulling, mea culpa!) but object to the new legalese that got inserted out of the blue on the form.

It requires I go get my next-door neighbors to sign off on it before submitting, which we've never had to do previously, (even when I had my roof replaced...the old form was much simpler).
(My next door neighbors recently built a 2 story "shed", I don't recall them asking me to sign a permission slip...) which strikes me as selective enforcement...

It also requires me to waive my right to sue if they don't approve the application, which seems to put me in an untenable situation. Submitting the form is mandatory, but I shouldn't have to waive rights for a mandatory process, especially when it isn't spelled out in the bylaws or the articles...

A lot of this probably stems from deeper issues about how the HOA is being run, maybe I should post on a different thread. I see these HOA things always get complicated...

Long story short:
When the board, (some members of which had been serving for like 15 years apparently, originally proposed hiring this management company, they called a meeting to explain why they thinking about it. It was the first one I attended, and it didn't go well.

Basic issues about revenue, how much the management company would charge, how the MC selection process went (the lady from the MC was a friend of one of the old Board members, of course) how they worked, were being glossed over. So when I objected to the idea, they said "let's take a vote!" At that point pointed out that they didn't have a quorum present in the meeting, they looked at me like I had 3 heads. They didn't know what a quorum was! It dawned on me that they've NEVER had a quorum in 20 years. I also pointed out that they weren't notifying the members about the meetings by mail, as prescribed in the ByLaws, they just sent out an email...They've just been passing the Board jobs between a few people, with basically no oversight. Big argument ensues at meeting. I don't hear from them for a year and a half. Then then current chair and the old board member both move out of the neighborhood, and the new board, quietly hires this MC anyway.

I don't know who the board is, or know when they meet, they don't seem to publish that stuff. I guess I've got some digging to do.

DanM12 (Georgia)
Posts: 25

Posted:

so, kill em with kindness/1000 papercuts?
that might be a thing...

DanM12 (Georgia)
Posts: 25

Posted:

"Perhaps the MCs contract with the Board gives them a kickback/fee for each violation identified and tracked to closure . . . although a completely idiotic thing to be included in a contract, it wouldn't be the first time. The MC is incentivized to find as many violations as possible (most nit picky crap like this) to maximize profits. They don't care about the strife being caused within the neighborhood or animosity between Board, HOA Members, residents. It actually helps further necessitate the MCs involvement in that HOA. "

this is the main source of my objections...I never got a clear answer as to the MC compensation basis

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By DanM12 on 06/05/2019 9:54 AM
It also requires me to waive my right to sue if they don't approve the application, which seems to put me in an untenable situation. Submitting the form is mandatory, but I shouldn't have to waive rights for a mandatory process, especially when it isn't spelled out in the bylaws or the articles...

If you choose to add the phrase "signed under duress" under your signature, you have agreed to sign the piece of paper because you have not other choice (as you said, it's mandatory), but you haven't agreed to waive any rights.

For reference, look up the term "adhesion contract." The phrase "signed under duress" is a powerful defense against adhesion contracts.

Sikubali jukumu. Read all posts at your own risk.

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