How do you Contest a HOA illegal Ruling?

I have had a LOT of help here on this Forum with other concerns. Thank you for that. I really appreciate this forum and its members.

My question, now, is how do you contest rulings by the HOA attorney that smell illegal? We either have an HOA lawyer who seemingly "works only for the benefit of the current president" or who is totally incompetent.

He acts –as a bully– to make it financially more expensive to go to court than to get paid over financial disputes or to even hold disputes, i.e. to get a determination over who is right or wrong within the by-laws and declaration articles. He disenfranchises people running against the current Board and declares that they cannot run.

We have sited the articles. We have paid out of pocket for outside attorney letters with multiple legal examples holding up their opinions. We have not yet paid out of pocket for an outside attorney to come in, nor do we know how to argue these things against our current bully attorney and bully president so they can be settled legally.

Any help or suggestions?

Thanks again!

Unfortunately this happens a lot. I think the first thing a HOA member has to understand is that, incredible as it may sound, the law requires a HOA attorney to do what the board wants (short of a criminal act). Also incredibly, this is regardless of what the covenants, bylaws, municipal code, state and federal law say. The reason for this is that, by law, the HOA attorney's client is the HOA //as represented by the board//. Individual members are not clients of the HOA attorney. The HOA attorney is technically legally obligated to explicitly inform individual members in a dispute that she or he does not represent them as individuals.

My experience and it seems many others' experience here is that the cheapest route to take to resolve a legal dispute is to get a like-minded majority to run for the board; campaign heavily (and this will cost time and money); and win election.

Now and then a member may take a HOA to court and win, after spending at least a few thousand dollars and giving the lawsuit much time. But the victory is just one battle and not the war.

Things are very much stacked in favor of incompetent boards. They can blithely run up the legal bill for the HOA, at no direct cost to themselves, billing instead the entire membership. To add salt to the wound, such boards often publicly blame an individual member for the costs, even when the board is in the wrong.

If one has to live in a HOA or condominium, I think it's important to pick one's fights. Losing a little face to a pack of liars is better than giving a great deal of energy trying to fight people who simply, sadly, and legally have nearly all the power.

In my experience, when a board is cheating in elections, one's options are to either take the board to court, or move.

John, the by-laws state that only an owner on "record" can run for office.

(In Michigan, anyone with an interest in the property, such as a spouse,when the property is acquired during the marriage, can claim an interest in the property.A family member can appoint a family member, or a full or temporary Attorney in Fact, etc. to represent their interests if they are out of the county or disabled or have Alzheimer's, or just chose to, etc.)

Our Articles state that when multiple family or other owners co-own a property that they ber of the HOA, and that they themselves can decide who to chose to represent them. Our Articles also state that when there is a conflict between the by-laws and the articles, that the articles will prevail.

The current HOA attorney (this was NEVER done before this bad board and attorney and we have owned our home for 24 years), claims that the owner on "record" MUST now be ON the title. He consistently disqualifies spouses and family co-owner members. Before that, he required marriage certificates, and when they were produced, he went on to this new interpretation of "on record."

(In Michigan, property laws state that you do NOT need to be on the title to be on record as holding co-ownership.)

I hope this fleshes out one of our problems.

Thank you for your consideration of our dilemma here.

How do you take a Board to court?

Thanks for taking the time to respond and you've given me a lot to think about!

Personally,I would prefer NOT to sue anyone. I think it would be better to mediate or something???

I'll continue to moderate the suggestions all you helpful people are giving me and try to determine how or even if to proceed.

Again, Thank You. Thanks to ALL.

Correct, although another option is to get so much evidence that the board can’t cheat. Such as by homeowners getting proxies from a majority of owners, sonthatbthe board can’t claim “it” won an election.

OP, the attorney works for the HOA. The board can ignore or fire the attorney. The attorney should be acting only if and when the board tells the attorney to act. The attorney doesn’t have to be involved with elections.

If the attorney is violating rules that govern lawyers, called the Rules of Professional Conduct, file a bar complaint, although those usually have no effect.

Continued Appreciation to all contributing and participating in this thread.

I think most people believe that the deed (and its names) say everything.
But in Michigan, this is NOT true.

Here is a paragraph from an Official Michigan Law Site:

"THE NAME ON THE DEED:

Sometimes people think if only one spouse's name is on a property deed, the other
spouse does not own the property or have any right to it. THIS IS NOT TRUE. Real estate
is marital property if it was purchased or paid for during your marriage.
It doesn't matter whose name is on the deed.

It also doesn't matter if only one spouse's name is on the mortgage.
The mortgage only shows who is legally responsible for paying the loan.
It doesn't show who owns the property. "

(Michigan Compiled Laws, Chapter 557, Sec. 557.21)

Our HOA is in Washtenaw County, Michigan.

I am not sure about how other family members or Power of Attorney applies at this time. One woman in our community is elderly with Alzheimer's and her daughter has Power of Attorney, but also was not allowed to vote.

Another family has an adult son who has been living in, improving, and paying his parents for the property, but even when his parents came to the election, the son was not recognized as an owner or co-owner by the HOA lawyer.

I might add, that such types of spouses and/or family members WERE previously allowed to both vote and be Board members for 20 out of the 24 years we have lived here. Only THIS Board and THIS HOA Attorney (at their orders) have implemented these NEW restrictions/interpretations since they have not wanted to share the power, the records, the clubhouse with any of the community who would unseat them (mostly in the interest of SERVING the community, not RULING them, in order to have a more involved and happy community). It is rather like, instead of being treated as homeowners, the community owners here are being treated as if renters.

It is unfortunate, because a healthy, involved community is a desirable one. Property values increase. People want to live in such communities.

A community HOA must "keep the lights on," but it could also serve to "involve the community in positive ways, and build and nurture community."

The present HOA Board does keep the lights on for the most part, but not cost-efficiently or kindly. So many of us are frustrated.

However, without a clear path for correcting this,it feels cost (and power) prohibiting. After three elections where proxies, votes, and new candidates were disqualified by the HOA Attorney, many very good neighbors are contemplating selling and moving.

Again, I appreciate all the advice here and am sharing it with concerned neighbors. Thank you.

If there were a way, it is my hope that it would be more desirable to turn these problems around.

Thank you.

I feel your pain...ours wrote letters and then got paid agian to retract the letters and admit that they were wrong...makes the Board, MC and him look inept.

Christina,
Thanks. Seeing how many HOAs have trouble, in certain states especially, makes us weary.

Hi. Got a laugh out of that! Thanks!

I agree that the articles are in conflict with the bylaws. But, in a way, it makes sense:
one vote per home and if the home is owned by two or more members, let them decide among themselves who gets to represent the vote or membership.

In our community (sadly other HOAs too), another big problem is apathy.

It is very very obvious here, though, that the lawyer was brought in to obstruct anyone who was trying to change the board. I guess that's legal, possibly. For certain, no one here has thousands of dollars to take them to a judge to determine what is right or wrong, but the board has the power of an HOA attorney, without it coming out of their personal pockets, that follows their direction (and must).

Thank You!!!! This is very valuable information! Thank you! We will look into it!

I don't think it does apply to HOA's. HOA's aren't allowed to have Social Security #'s.

Exactly would the OP be suing for? It seems instead of a lawsuit, the rules need to be updated/changed. Which if get enough support should start that process instead of a lawsuit. If the rules aren't clear or aren't what the majority wants, then change them. The rules are what the owners choose to live under. They allow changes to be made. Guess what? It's not by the board but by the entire membership.

Read the rules to find out what it takes to change them. Get a group together to hire a lawyer to go over the proposed changes and writing them. If it takes a special meeting to make changes find out what options that allows. You may be able to skip that requirement if people willing to give up their "right" to a special meeting to cast their vote.

There are other options outside of a lawsuit. Read your documents to find out what they are....

Also, some people just need to be a defendant, to get a "whack" that gets them to shape up.

Small claims court is an effective and low-cost way to do this.

Suing your HOA can be a way to fix bad behavior and is often a sole remedy, since state laws provide such weak/effective oversight of HOAs. It's not "suing yourself": bad board members can be personally liable and HOAs generally have insurance. And even if it were "suing yourself", it's often worth it to fix bad behavior that impairs property values.

Uh, oh. Now you've done it...

I'm with you, Paul. I just hear the refrain of Sweet Home Alabama warming up in the distance.

Thanks. It'll come. I totally see Melissa's perspective and think very highly of Melissa and her posts. If I were a board president, I would see lawsuits very differently. But I'm not; I've been shafted by bad boards.

You ALL are a very cool group! I am impressed. And amused. And enjoying and learning here.
Thank you. -Roberta

That is a great idea Susan. Bring your issue to the floor. State why you don't believe the existing counsel is doing a proper job. You argued it here. Why not where it matters?

Don't expect it to change but atleast get your opinion heard. It may create a bit of doubt with what is happening. It also may educate you as well if the decisions aren't bad ones. They just may not be the ones you want to hear.

Good time to address the rules and get them changed as well.... Sweet Home Alabama! Roollll Tide!!!!

I'd go further and send a demand letter to the board about this. Cite the state statute that allows "derivative demands" by owners. What this means is that if the board doesn't terminate the lawyer, then you, as an owner, can act on behalf of the HOA to pursue a claim against the lawyer, once you've sent the "derivative demand" letter and the board hasn't acted.

Thank you all for this animated discussion.

I have a question: Our By-Laws state that on the first meeting after the election, the Board must, at that time, appoint a nominating committee to consist of one board member and two (non board member) residents for the next election.

They do NOT do this. They assume that they are the nominating committee themselves and only just before the election, in the annual meeting letter –where the election is announced and the proxies are enclosed– do they nominate themselves only. They have only allowed nominations from homeowners present at the annual meeting on the floor a few minutes ahead of the election.

Is this a breach of their fiduciary Duty?

If so, is there a recourse for that.

For years, many of us have been asking and questioning: Where and Who are the Nominating Committee?

They also are charged with forming a 3 member (homeowners, not needing a board member) Architectural Committee. This community has many qualified for such a committee: builders, architects,etc. The Board -with few architectural qualification, if any...one electric engineer)– considers itself the Architectural Committee and bases its decisions of approval or disapproval on their own personal tastes.

Is this also a breach of their fiduciary duty?

Can they be removed from the Board for that?

What does a derivative demand letter look like? Is there a template for that? Would I/we need an attorney? How does it work?

Also, Thank you, again for your advice and input!!!

Our elections one gets elected to the board by the membership. Once elected the new board members vote amongst themselves for the office positions. It is not done by a nominating committee. I would suggest your HOA form a nominating committee so they can be responsible for vetting out those running for office besides the attorney.

Ultimately the ACC answers to the board. The board has the final say. Our ACC just basically became the board members as no one was interested on being on the ACC. So we approved/denied everything. Which usually made the decisions after the meeting so we could go and check it first hand.

Still think need to make a better procedure for legal expenses. We always had the board agree prior to ever contacting an attorney. The President (me) would be the one to be the POC for it. I rarely ever contacted an attorney outside of the procedural needs of liens/foreclosures, and rule changes. Other than that, I'd tell people to bring me the lawsuit when your ready. Have a nice day!