Challenging a HOA Reading of the Articles and Bylaws

Well, the attorney is supposed to help the board interpret the documents, so if board members have a disagreement, they’ll have to find a way to come to a consensus.

It does help to start at the beginning – are you on the board? If so, what section has prompted the disagreement and why is an interpretation necessary? For example, if there’s a question about what to do about a CCR violation but the documents aren’t that clear as to what should happen if the homeowner can’t or refuses to fix it, you may have to take legal action against the homeowner (who may bring up the conflict if he/she’s aware of it) and then a judge will have to make a decision.

If you’re the homeowner, you’ll have to take it to your own attorney and ask him/her for an interpretation. Sorry, but you’ll have to pay for it – going to the Internet for legal advice is a dangerous thing, especially since most of us aren’t attorneys and what may be true in our state may or may not be the case in yours.

Depending on the situation, this may be a good time for both sides to come together and work out a compromise – forget about the legal mumbo-jumbo, but look at the problem and figure out the best way to solve it.

Once that’s done, perhaps a closer look can be taken at that section and the board can work with the association attorney on a rewrite that’s written in plain English that people will understand (which may also require homeowner approval since you’re talking about amending the documents).

This is why HOAs really need to take a look at the documents every 7-10 years or so and see what can be dropped, added or amended. It’s not about addressing every single issue in HOA land – you’ll never be able to do that and most people won’t read all that anyway (they barely read the documents now!). Sometimes, resolving conflict is a matter of people being willing to stop and think for a few minutes, breath so their blood pressure will drop back to normal and use some common sense (if they have any).

Walter, Shelia, Thank you for your comments.

Shelia, unfortunately, the Board's majority is biased and have directed the HOA attorney to defend their biases.

Oh that we could sit down and discuss this without power trips.

It is very simple (to me anyway). The bylaws state one thing. The Articles state another. The articles also state that when there is a conflict between the bylaws and the articles, that the articles shall prevail.

The HOA lawyer and the biased members of the board insist that the bylaws are the only standard.

Walter,I like your simple advice. Not instant gratification. And hard to get good board members when so many homeowners prefer not to involve themselves in HOA businessBut we do have two good members on the board, two who never speak up, one of which always goes along with the powerful ones, and three who like to "lord" over the homwowners. (You can't make a yellow flower into a red flower...)(But perhaps you can consult a head master gardner???)

Our ByLaws have the same clause about Articles overriding them. Our ByLaws permit board members to suspend voting rights, yet both our Articles and Declaration both state "every homeowner SHALL have one vote". And so the argument is that the ByLaws can't undo what the Articles/Declaration have mandated (via "Shall"). If they suspend voting rights, then technically you no longer have a vote. However, attorneys here say that it's not wrongdoing to view this differently, and say "no we haven't taken away your vote; we've only suspended it because you don't have the correct mailbox, etc".

I had that fight with our previous board members, and they insisted on their right to suspend voting rights. So I showed them the legal argument in a 2-page document, and told them if they didn't change their policy, that I'd be canvasing the neighborhood and going on NextDoor to advertise their decision to view things this way.

In short they were trying to enforce uniform mailboxes upon the vast majority of home owners, and when we suggested that perhaps we should amend the CC&R's to remove unpopular clauses no longer wanted, they informed us that not enough people were even *allowed* to vote to satisfy the 2/3rd requirement. Only 30% of our HOA was fully compliant, and therefore not allowed to vote. This would also impact the Board elections as well -- meaning that they could simply not let the vast majority of us vote on the next board.

In the end, they simply made it very easy to replace them with a whole new board. We canvased, and obtained proxy votes from the majority of all home owners, to get a new board -- and then we replaced them.

But before we did this, we did get them to retract their "vote suppression" tactic and say "OK, we won't suppress votes", because I had already polled dozens, and discovered how angry everyone was at them. And that was enough for them to back off on that tactic.

So in truth, I think "publicity" can play a big role on coercing a board into "behaving" in a way that isn't offensive to most.

So the real question then is this : "Is your board behaving in a way that would embarrass them (and anger your neighbors) if it was publicized?"

If Yes, then you are in a good position to coerce them. If No.... then I question your motives, sorta. If you are trying to coerce a board to do things that the vast majority of HOA members wouldn't agree with, then maybe you should stop trying to coerce them. If you want it done differently, get on the board yourself with a few like-minded individuals; then you can do things differently.

In our case, the board was just too much into left field, and we needed a bigger change; so we replaced them, and their behavior made this very easy to do.

Again, Thank you, Walter for your response and experience. Also, thank you Genos, for adding your addition.

Walter, I think that the way some of the board behave would greatly embarrass them if made widely public. Three board members (it used to be six so we are making progress, albeit slowly)in our HOA have highly "left field" methods and behaviors. There are also two members who behave very ethically. And we have two who follow or abstain only, which can be viewed as respectful and/or meek. Hard to say. Hard to understand why they stay on the board.

I would hesitate to embarrass the whole board.

I do like the idea of having someone draw up a legal argument in one or two pages and presenting that. It seems to the point, legal, and polite.

A lot of the HOA homeowners do not appreciate their or others being disenfranchised by the board majority. But a lot of homeowners don't want to get involved in matters unless they directly affects them or their property. And there are those who don't wish to get involved because they fear retribution (which is disturbing and has happened here.)

It is helpful too hear how others have navigated a difficult board or board majority, or also experienced a questionable reinterpretation of the bylaws and articles,(and, in our case also the odd, questionable use of the HOA attorney to enforce that).

RobertaS, is this a condominium?

It is a multiple single home HOA: townhouses, single homes, and (rental) apartments.

RobertaS2, a caveat: The instant you threaten a lawsuit, this board will likely make your life a living hell. They will use the HOA attorney to do so, forcing all members to pay for his billable hours. It's sad but it's usual. Will a long drawn out battle be worth it? Particularly if this attorney is the dreck I suspect he is and responds with lies about you and yours who are fighting the board? Which by the way he is not only allowed to do but will argue he is obliged to do under the Rules of Professional Conduct.

If you do not have a like-minded majority to unseat this board, fighting them on this may not be worth it.

PS
HOA attorney fees (allowable/reasonable attorney fees are also described in articles) are now at quite a large amount of thousands of dollars used to hurt and threaten various individuals who challenge the Board and also to represent one particular board member who needs his own questionable acts as board member "hidden" as "work product."
Which I would also (although I am not an attorney) consider in some reading, violating the use of our HOA attorney.
Our articles also state that board members are indemnified, but NOT if they are found "acting against the best interest of a shareholder (homeowner)."

I agree. Either file a lawsuit or get over it.

I cannot thank all if you enough for your help and counsel. This board, HOA TALK, is simply incredible. You rock!

BTW, as/if things improve or change, I will post here.

In the meantime, thank you so much!!!