HOA-Bought & Installed Mailboxes?

You could probably do tit as you suggested, but I’d give them a deadline and although I might buy the mailboxes, the homeowner would have to pay for installation or do it themselves. This is a good way to split responsibility.

That said, you didn’t say how many homes are in your community, but a bulk purchase plus installation may get pricey. Do you think the homeowners would approve of this type of expenditure? In the grand scheme of things, is there any indication homeowners are going ballistic over the color and style of – a mailbox???

Technically, most of the houses may be non-compliant, but on the other hand, perhaps the board should concentrate on more critical matters. Also, as long as the Post Office finds them compliant, this may be one of those CCRs that’s past its usefulness and should be dropped anyway (the homeowners can take a vote on that)

Ummmm... no. Buying new mailboxes will not raise property values.

PS. Matching everything, including mailboxes sounds like a scene out of a horror movie where everyone is forced to match everything. Including matching clothing. Eeeeek.

I don't think that's how it works.

Yes. If an association doesn't like something then it has the power to change it. It's not complicated. Until the Declaration is amended, however, you have to do as it says.

When I ask "can we do it by force?", there are two paths for "force":

1. Issue a $25/month fine (starts after 3 month grace period).
2. OR, just go do it during the day. When they get home, they'll find their previous mailbox sitting on their front porch with a kind letter.

Which option is better? Or is there another alternative?

This would be an amendment to the CC&Rs. Does your HOA intend to follow the requirements to amend?But the board is spending the membership's money to do so. This goes beyond enforcing the present covenant. To do 2. would also require an amendment to the covenants.For 3. above, let me now assume your HOA has properly amended the governing documents regarding mailboxes. Are those with an old mailbox that was previously compliant required to replace their mailboxes to satisfy the amendment? I think fairness dictates no.

I think "grandfathering" is something of a legal term of art. Sometimes statutes and ordinances are explicit about what is grandfathered. Sometimes not, and case law may play a role in whether something is "grandfathered."

How about those with an old mailbox that was not compliant under either the old covenant or the amendment? I would need to know how many years had gone by and how many mailboxes there are that are non-compliant under the old covenant and the amendment.If many mailboxes have been non-compliant under the old covenant for many years, with the covenant not being enforced, there is an argument that the covenant has been abandoned.

The board's (or your?) main objection seems to be: Uniformity has been lost due to lack of enforcement. Can the board recover, at least in part, that uniformity?In my opinion doing 1. lawfully would require an amendment to the governing documents.Is what you are proposing in 2. lawful? I think this is questionable. One thing seems fairly certain to me: People are going to be upset, and I think with good reason.I realize now that is one of your main questions, so my prior snark-iness was out of line. I believe competent HOA attorneys say that, if such-and-such is not on common area and violates a covenant, then the HOA should take legal action to enforce the covenant without going on non-common area to do so. That is: The HOA should keep its paws and feet off other people's land, despite what the covenants say permitting otherwise.

To enforce the covenant under discussion here, I believe the procedure should be something like: Notice of violation; hearing offered; fine; demand letter from HOA attorney; court. The procedure should be well-publicized in advance. A board cannot make it up as they go. Doing as I describe here is part of "due process." The courts expect HOAs to give due process.I know this verbiage is common in Declarations. But my understanding is competent HOA attorneys say the liability risks of going onto another's property are too great. Instead, a board should snarl (so to speak) with written communications and fines, following a well-publicized procedure, and assisted by the HOA attorney as needed. I am all for said snarling in the case of a covenant violation, assuming the covenant has not been effectively abandoned.I think your goal is a good one. One could easily argue that the costs of enforcing a covenant, especially one that appears to be abandoned, are prohibitive. Yet the covenant exists, plus the HOA looks bad. If I were on your board, I might propose the following compromise:

1.
Explain in three letters, one per month, to the membership the problems and cost of enforcing the mailbox covenant and how the appearance of the neighborhood has deteriorated. Repeat at board meetings over three months. Listen to members' concerns. But do not respond to the concerns other than to maybe say, "Thank you for your input."

2.
Ask all members for permission for the HOA to paint and repair the current mailboxes. Get the permission in writing. The board will reserve the right to fully replace some or all mailboxes, spending reserve funds to do so. State that this is in lieu of trying to enforce the present covenant, at great expense, which arguably is abandoned. Enforcement would cost as much in labor and time as just replacing all mailboxes. (Does this pass legal muster? I'd say it's not as good as going through the amendment process.)

Alternatively, seek an amendment to the governing docs, assigning the maintenance responsibility of the mailboxes to the HOA.

Walter, you say you have plenty of money in the reserve fund. Do you have a good handle on the most recent Reserve Study? Few people in HOA-land do. It requires relatively sophisticated math and spreadsheet skills. If you do not understand reserve studies, I think a generalization like yours may be financially reckless.

Since a covenant does not specify the color et cetera, but instead the ARC does, in my opinion prior mailboxes need to be grandfathered. Where do your governing documents say that mailboxes are a capital asset? They do not. Since they do not, the board cannot lawfully spend the membership's money to replace the mailboxes.

Respectfully, do you understand the difference between "common element" and "not a common element" is? "Common elements" are for every HOA members use. "Common elements" are maintained by the HOA. The governing documents say as much. NOn-common elements are the individual HOA member's responsibility to maintain. HOA member maintenance must be pursuant to any reasonable standard the Declaration specifies.I would have to know what other capital assets there are at your HOA; how old they are; what the latest Reserve Study says; et cetera before blessing your reasoning.

Respectfully: Your CC&Rs also do not say that each member's home is a HOA-maintained asset.I doubt your Bylaws have anything about capital assets (a.k.a. common elements). Bylaws for a HOA like yours provide specific instructions on how the HOA is governed. This is different than a list of covenants, said covenants being agreements between each owner and the HOA to do xyz. I admit I was kind of thinking that there would be a lot of support for what you want to do. Lots of boards are not as strict as I and maybe some others are being on this issue.

You have started qualifying some of the variations on your plan with words like, "with the owner's permission... " I think this helps your case.

Would anyone get nasty and threaten suit if you used $4000 or so of HOA money to pay for something that individual owners should pay for? How would that play in court? For my entertainment, here's one take:

[The court is in session.]
Owner's attorney: Your honor, the mailboxes are not capital assets. According to the CC&Rs, the mailboxes are not maintained by the HOA. The CC&Rs are clear in several sections that the mailboxes are to be maintained by each owner.

HOA attorney: Your honor, that's true. But this HOA Board is in a bad way when it comes to enforcing certain covenants and maintaining the beauty of the HOA. Enforcing covenants and maintaining the beauty of the HOA are duties listed in the Declaration. The problem is that prior boards dropped the ball. Like many HOAs, enforcement of certain covenants was overlooked often. I believe the HOA Board would be on shaky ground trying to enforce covenants that could be said to be abandoned. Plus the cost of enforcement, with all its risks of litigation, is estimated to equate to the total cost of just installing new mailboxes.

Judge [to Owner's attorney]: Isn't that so? That the cost to enforce equates roughly the cost of just installing new mailboxes?

Owner's attorney: Yes, I agree your honor. But as opposing counsel said, my client's position is in fact that the uniform mailbox covenant is now abandoned. [Owner's attorney grumbles: The judge once again did not read the effin' brief.] Because the covenant appears to be abandoned, Owners do not have to maintain their mailboxes any particular way.

HOA attorney: Your honor, excuse me, but that's not really true. The covenants do require a well-maintained front yard, which of course would include the mailboxes.

Judge: Isn't it so that the purpose of the HOA is to see that the grounds are maintained to a certain standard?

Owner's attorney: Yes, your honor. But individual covenants can be said to be abandoned. The Indiana and nation-wide case law on the point is clear. The citations are in my brief [g-ddang it, he thinks].

Judge: So you want me to rule that the covenant is abandoned, and the HOA cannot spend $4000 on the mailboxes?

Owner's attorney: Yes, your honor.

Judge: HOA attorney, what do you say to abandoning the covenant?

HOA attorney: The case law is vague on the number of years that have to pass your honor. The Indiana case law does not set a specific number. I believe the number varies from one state to another, or maybe it's more of a case by case matter.

Judge: Owner's attorney, isn't it true that the HOA has a responsibility to maintain attractive front yards in general, even if the mailbox covenant is abandoned?

Owner's attorney: I agree that the rusted mailboxes have to go. But a mailbox that is not the color and style that the board wants... well, I think the board cannot dictate color and style, because the uniform mailbox covenant has been abandoned.

Judge: It's not abandoned until I say it is. [continues] Anything else, Counselors? If not, I have my ruling: The covenant is abandoned. But the HOA may seek permission from individual owners to replace their mailboxes using HOA funds, on account of the cost of enforcement would equal the cost of just replacing the mailbox. I rule that every owner must be given this option. This violates the covenant on how HOA funds are to be used. But I see that the HOA is in a bad situation. I am considering the overall legal purpose for which the HOA was created: To enhance home values. Owner's attorney, you may certainly appeal and quote me. Though since your client gets to keep his mailbox with the vampire decals on it, I hope he does not appeal. The HOA will have the right to fine the owner for unattractive front yard. Owner's attorney, I do mean your client is going to have to remove the vampire decals and maintain his mailbox in a tidy fashion. I do not want to see you back in court, with the HOA seeking injunctive relief because the mailbox is unkempt. The HOA may also apply a violation to all homes with a mailbox that is not the color the HOA desires, making returning the color to what the HOA wants a condition of sale of the home. No fines are allowed for mailboxes that are the wrong color. The HOA should figure out liability issues in consult with the HOA attorney. I encourage the HOA to seek an amendment to its CC&Rs. The court is adjourned.

I agree this is wise. Plus I gather you do not want to go to the trouble of an amendment.

These situations do not have to be black and white. It is guaranteed just about no one at the OP's HOA will understand the legal arguments here (re reserve funds; capital assets; abandoned covenants; et cetera).

One other thing to consider are those homeowners who purchased on their own or were made to purchase a mailbox of the previously-approved style, and the amount of money they spent bringing their mailbox back to compliance. Some mailboxes get pretty expensive and in some cases are a small point of pride for homeowners. So you could essentially be replacing someone's mailbox that cost them several hundred dollars with a $25, el-cheapo walmart metal mailbox. You might consider reimbursing those homeowners for their proven out-of-pocket expenses for a mailbox that will no longer do them any good. Just another suggestion to try and appease a handful of homeowners who will likely not be happy with your plan.

Also ensure you have a solid plan for future repairs/replacements. Unless you want the HOA to forever become the mailbox maintainers (which is possible with a covenant change if that;s what you want), then you want to ensure that once this one-time replacement is complete, responsibility transfers back to the homeowners to maintain future compliance. Further, perhaps you just settle on mandating black mailboxes of a style closely similar to whatever it is you install. You could allow some flexibility in what homeowners decide to install in the future (since what you purchase may no longer be available at some point) but require the consistent look of black.

that's right! well you can get stuck

Now I think you're talking. Still, the courts in most cases are obliged to enforce the covenants. In this case, this means the HOA is not supposed to spend HOA money on non-HOA maintained items. The CC&Rs are clear the mailboxes are not HOA maintained. The hypothetical judge above was sort of splitting the baby, to get the two parties out of her court and spare the taxpayer money. (I write having observed two HOA court cases years ago and a few other non-HOA court cases where I am. Here, I felt the judges really do try to get things right. But it's also true trial court judges mess up all the time. The fictitious judge above may have messed up.) All the while, as the one attorney was thinking derogatory remarks about the judge, it is guaranteed the judge was thinking both attorneys are jackasses for not settling this outside of court. The judge is trying to make everyone happy, as long as a violation of the law is not too obvious. The argument that the HOA is generally responsible for the appearance of the grounds is powerful, even if it does not quite trump the fact that the mailboxes are the owners' responsibility to maintain.Excellent. I would need more information to feel more confident, but for now, let's say no sane judge would rule the covenants to be abandoned.To me, breaking a contract is a big deal. I do not think taking members' money to buy an item that the HOA is not responsible to maintain is lawful. I do hear you. That poll you have spoken of maybe taking should help. But I would take no joy in telling members the board is going to blatantly violate the covenants. Just setting a precedent here may be a slippery slope. Some of the folks here at hoatalk may weigh in further.Yes, I am saying this. Why? Because what you propose is really an attempt to amend the Declaration. So the rules for amending the Declaration need to be followed. Plus "amending" the bylaws thusly sets a bad precedent. Imagine what other powers the board could invent, and give itself, via amending the Bylaws.As I wrote before, there is a great deal that the CC&Rs do not say. In addition, I would keep in mind that there is a legal hierarchy for the governing documents. The CC&Rs trump what the Bylaws say. What you propose putting into the Bylaws actually is trumped by what is in the CC&Rs.Great. As a member, I would find the above persuasive. I vote to shorten the above blurb up a bit. Then put it into the three letters to the membership that your board /will/ send out over three months. Repeat the blurb at the next three monthly board meetings.

===================================================
"All right, listen. After Ollie makes his second
shot -- and you will make your second shot -- "

-- Indiana Basketball Coach Norman Dale

Thanks AugustinD. We're probably going to move ahead with this being an option to consider. This issue will be voted upon at our next HOA meeting in the form of a ByLaw amendment, which "permits the board to do such a replacement only if 2/3rds of those voting (and at least 1/3rd of the entire membership) approve of the replacement." That would at least guarantee that it's an action with super-majority support.

Our HOA didn't have a mailbox issue but lamppost one. We required the lamppost have a 14 inch round globe and 40 - 60 Watt bulb. When a post or got in bad condition we sent the owner a letter. We gave them the place where they could purchase the globe/post. If the light was too bright, we'd let them know it was. IF they wanted the HOA to replace it, then we would charge them a labor charge but the cost of the materials. The labor charge would be what we paid someone to replace/buy materials. So there was no "profit" but the exact price of cost of materials and labor. The owner was free to do it themselves just as long as they bought the right materials.

When I say 2/3rds, I'm talking about 2/3rd's of about 50% sample... half won't answer a poll or cast a vote. Apathy makes passing the amendment much less likely.

I figure a change to the ByLaws regarding how we enforce this one covenant, will probably suffice to make the procedure official for replacing an old mailbox spec. Since the ARC is able to change this spec year-to-year, the new ByLaws amendment will simply govern how it is to be done, which includes the HOA paying for the materials and installation. But each home only gets the "first one" paid for, for each new mailbox spec.

I am comfortable that this plan is *enough* to get it done, should we obtain strong support for going this route.

The CC&Rs are silent about how mailbox maintenance is to occur. In fact, our CC&R's are worded very dangerously, permitting the board to specify a completely new mailbox spec every single year, and then declaring everyone's mailbox out-of-compliance.

Putting something in the By-Laws to specify "how" this is to be done, seems appropriate. It doesn't conflict with the CC&Rs, but only expounds on it.

The alternative is to do nothing, and allow this clause to become abandoned. Or we can enforce it, and use HOA funds appropriately to make it go more smoothly.

Sorry, Walter, but attempting to modify the effect of the CCRs by modifying the Bylaws, is a bad idea, and not the purpose of Bylaws.

You either need to stand your ground based on your reading of your CCRs, or modify those CCRs via community vote. Given you are well outside the CCRs in several components of your plan, your only reasonable course of action is to modify.

Take the long view, and do it right way.

"Get away with it" implies doing something bad that the HOA wouldn't approve of. The reason the AG is so lax on HOA's here in Indiana is that they don't want the law to get in the way of common sense. The only time the law would rule over common sense is the rare case where someone in the HOA decides to hire a lawyer and file suit, right?

Doing something that makes sense, is good for the HOA, is good for the region, and has super majority support from the owners is not a case where "the board does what the board wants", but rather "the board does what the HOA wants, despite it being something that could be legally challenged by the minority".

So I would see it like this. If the board modifies the ByLaws per the will of the HOA, and buys/installs mailboxes for the HOA at large, and then installs them... what is the risk? What type of lawsuit could someone bring against the HOA? Does that one person want their $40 back? Are they going to sue for $40? If 10 of them join together, maybe they can sue for $400? Or 20 for $800? Will they sue to keep their non-uniform mailbox? The CC&Rs are clear about uniformity and the power of the board to create the spec. So I think they'd lose the fight of "keeping their non-uniform mailbox".

So the way I see it. The biggest risk here is simply one of ensuring that we don't make too many people angry/upset. We could do that by simply giving them a long period of time to decide to accept the new mailbox spec (a year). And then we don't even consider using force until we're up to at least 80% compliance without the use of force/threat (and fewer than 1 out of 5 mailboxes are non-compliant). We're still going to give out the first mailbox/installation for free. If we never achieve 80% compliance without force, then we simply live with it. We're no worse off than we are now. And at best we achieve that 80% compliance without force, and then we compel the final 1/5th to comply as well (but at no added cost to them).

Walter,

Well, you’ve received input from most of the usual posters here. I think most strongly advised you to do the correct, logical and legal thing, right? Modify your CCRs.

You have indicated your intent to move ahead with a plan we all advised against.

Let us know how it goes.

This is not the first board member I've seen who wants to take a similar approach in their HOA. Having gone through the experience myself, it is such a terrible idea to go through with it this way. It's NOT how the system is designed to work.

It's NOT a lawsuit thing. It's just how does one feel if the post office had approached everyone to change out their mailboxes instead of the HOA? What would your reaction be to the Post office? Would you go to the HOA and demand they pay for it? The HOA would NOT be responsible if the post office recommended/required it. Unless the membership agreed the HOA spends the money on the Post office request, it's and individual thing.

I agree.

Mortgage institutions pay specific attention to what people pay ... it’s a comp for the next house sold.

Nicer, more consistent neighborhoods - for whatever reason - draw more $/SF.

Consistent, HOA policed features, are likely to improve the value of each SF.

Seems pretty clear to me.

It is location, location, location, etc. ad nauseum but once a town checks all the right boxes then it very much becomes curb appeal. Curb appeal does not mean just the home itself. A home with great curb appeal nestled between two dumping sites would be a turn off

Curb appeal extends beyond the individual home to the total neighborhood. Some years back a realtor would be showing me homes and if I did not like the overall approach to nor the neighborhood I would say, I am not interested in seeing the house. Some would say but it is a lovely home and attractively priced. I would say drive on to the next place. I do not want my friends driving to my house thinking this is a bad looking area, no matter how nice my house when they arrived.

Mel

In my example of trash places beside a house let us consider an out of sight situation such as the same house a few blocks away but lovely homes beside it. While not on the HUD form, it can make a major difference though the two house being so close will be lumped together in comps.

The time it takes to sell a home isn't factor in for when it sells. That is marketing side of things.

I am a former Quality Manager. (Yes on top of being an Ex-HOA President. I keep pork chops in the freezer). One of things you learn when assessing "quality" is that it has to be MEASURED. Which how do you measure the quality of something? You can't touch quality. You can't put "quality" into something. Quality just is.

Just like homes. You can't measure why someone doesn't buy a perfectly good house. I didn't buy one because I hated the wallpaper. The other buyer didn't buy because of the location. None of us said it was the price. How is the bank to know and when?

That is why they use REAL #'s to measure the market. Which is by using the HUD form in HOA's to check on rental rates, liens, foreclosures, fee simple status, and rates of collections. All of which have #'s. They don't measure it by how well the HOA looks. Good or bad conditions are subjective.

That does NOT mean a home will sell at asking price in a nice neighborhood versus a bad hood. It's just people will try to offer lower money for a bad hood than closer to the asking price. Again another way to measure sellability not actual home value.

For those accusing me of trying to take the "easy way out" (and not legal), please know that the easy way out is "status quo" or to just not enforce uniformity at all for mailboxes.

Our Declarations enumerate HOA responsibilities as:
"The responsibilities of the Association include, but shall not be limited to:"

Nothing in our governing documents prohibits a By-Laws amendment to declare "how we will deal with a change to the mailbox spec".

Our CC&R's are worded in a way that permits the ARC to whimsically change the mailbox spec to whatever they want, and then they can enforce the new spec. This is dangerous.

So the By-Laws would simply control the manner in which such a mailbox spec change can be made (i.e. it must have majority support, and permits the board to pay for the new boxes to ease the pain).

The HOA will soon be voting on one of the following options:
1. Status Quo - keep the brown spec that doesn't match the previous specs, and keep our muddy/non-uniformity going.
2. Loosen the Spec - allow more colors -- grey, brown, or black; nothing bold. Keep it with wooden post, and metal galvanized steal with red flag. HOA will focus mostly upon maintenance only.
3. Black Mailbox Spec - HOA buys all new mailboxes to ease the pain.

It is not an option for us to obtain 2/3rd vote of ALL members here. So if #3 isn't good enough "as is", then that leaves us with the true "easy way out" which is represented by #1 and #2 above.

So if you are voting against #3, then you are effectively voting for us to take the true easy-way-out, with the first 2 options. Non-uniformity will reign supreme. Congratulations on your vote.