AnnaD2 (Florida)
Posts: 960
Posts: 960
Posted:
Hi from Florida. Can the Board of Directors be sued for not enforcing the rules? Has anyone out there ever been through or experienced this before? Thanks all any input.
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Suing Board
Started by AnnaD2 • 16 replies • 2193 views
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RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
AnnaD2,
I think the question is why would the owners want to sue the Board? The Board serves at the owners pleasure, the owners are free to recall the Board. If you are asking; Can 1 member or a group of members sue the Board? Of course anyone can bring suit against anyone, and get a court hearing if appropriate. But why, what do you hope to gain. If you can prove the Board is involved in criminal conduct, better have clear facts.
There are other more productive meeasures to take before suing the Board.
If you have some owner support, call for a special meeting and demand to know what is going on, make specific demands that are allowed under your CC&R's, that's where to start, know your documents.
Also I think there are a couple thousand postings about problems like this on the search feature of this sign, look at top right side of page for search option.
You have specific questions better to post them. Suing the Board and the question; "Can you sue the board for not enforcing the rules," may need to be addressed, but you have better options; CC&R's,
I think the question is why would the owners want to sue the Board? The Board serves at the owners pleasure, the owners are free to recall the Board. If you are asking; Can 1 member or a group of members sue the Board? Of course anyone can bring suit against anyone, and get a court hearing if appropriate. But why, what do you hope to gain. If you can prove the Board is involved in criminal conduct, better have clear facts.
There are other more productive meeasures to take before suing the Board.
If you have some owner support, call for a special meeting and demand to know what is going on, make specific demands that are allowed under your CC&R's, that's where to start, know your documents.
Also I think there are a couple thousand postings about problems like this on the search feature of this sign, look at top right side of page for search option.
You have specific questions better to post them. Suing the Board and the question; "Can you sue the board for not enforcing the rules," may need to be addressed, but you have better options; CC&R's,
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Absolutely right on RobertR1,
Sueing the Board? Who will pay for that? YOU,!!and all of the homeowners and that includes the Board themselves. RECALL!! Florida Statutes has a very clear writting on how to do that. Much more cost efficient and less time and a whole lot easier than going to court and paying lawers tons of money. And it takes forever to get on the court dockets.
Just go to Google and key in Fl. Statutes 720. There is a whole chapter on "Recall of Directors" Make sure that you have some good documentation of why you feel this should be done. You will need lots of community support.
The Statute reads that you will need 10% of the entire membership to present a petition to the Board, demanding their resignation. They have 5 days to respond. Then, let the fun begin.
Are you saying that your entire Board is doing something bad enough to warrant their entire recall? It must be pretty bad. Gives us more information please.
Sueing the Board? Who will pay for that? YOU,!!and all of the homeowners and that includes the Board themselves. RECALL!! Florida Statutes has a very clear writting on how to do that. Much more cost efficient and less time and a whole lot easier than going to court and paying lawers tons of money. And it takes forever to get on the court dockets.
Just go to Google and key in Fl. Statutes 720. There is a whole chapter on "Recall of Directors" Make sure that you have some good documentation of why you feel this should be done. You will need lots of community support.
The Statute reads that you will need 10% of the entire membership to present a petition to the Board, demanding their resignation. They have 5 days to respond. Then, let the fun begin.
Are you saying that your entire Board is doing something bad enough to warrant their entire recall? It must be pretty bad. Gives us more information please.
BradP (Kansas)
Posts: 2,640
Posts: 2,640
Posted:
Anna:
To answer your question, yes you can sue them for not enforcing the rules. However, as others have mentioned you would be much better off recalling your board and getting other board members elected that will do it. Another option is to recall the board, get a new board and hire a management company to do the enforcement for you.
All suing will do is waste your money and not really fix the problem.
To answer your question, yes you can sue them for not enforcing the rules. However, as others have mentioned you would be much better off recalling your board and getting other board members elected that will do it. Another option is to recall the board, get a new board and hire a management company to do the enforcement for you.
All suing will do is waste your money and not really fix the problem.
AnnaD2 (Florida)
Posts: 960
Posts: 960
Posted:
Ok---let me give you more information....I am ON the Board! I am one of two (of five) who insists on enforcing the rules. We've been threatened by (rule-abiding) members, who say they'll sue us if we don't enforce the rules. It's the other THREE who say the members WON'T sue us. I want to reiterate the fact that it can, indeed, be done. Love your comments! Keep 'em comin'.
PaulM (Pennsylvania)
Posts: 1,347
Posts: 1,347
Posted:
AnnaD2: It is the Board's responsibility to enforce the documents and any rules & regulations which the present or past Boards have instituted. Enforcement of rules is not to be acted upon based on whether a member will sue or not.
Check your docs to learn if (and when) a Board can be sued. I believe there may be a phrase as part of Liability and Indemnification which states something like...except for their own willfulness, conduct or gross negligence. Would you consider not enforcing the rules gross negligence?
Check your docs to learn if (and when) a Board can be sued. I believe there may be a phrase as part of Liability and Indemnification which states something like...except for their own willfulness, conduct or gross negligence. Would you consider not enforcing the rules gross negligence?
RonaldW (South Carolina)
Posts: 901
Posts: 901
Posted:
Quote:
Posted By AnnaD2 on 10/02/2007 3:14 PM
Ok---let me give you more information....I am ON the Board! I am one of two (of five) who insists on enforcing the rules. We've been threatened by (rule-abiding) members, who say they'll sue us if we don't enforce the rules. It's the other THREE who say the members WON'T sue us. I want to reiterate the fact that it can, indeed, be done. Love your comments! Keep 'em comin'.
Ok---let me give you more information....I am ON the Board! I am one of two (of five) who insists on enforcing the rules. We've been threatened by (rule-abiding) members, who say they'll sue us if we don't enforce the rules. It's the other THREE who say the members WON'T sue us. I want to reiterate the fact that it can, indeed, be done. Love your comments! Keep 'em comin'.
Get your documents out and study them. I'll bet the BOD or the HOA can be sued for not enforcing the covenants. And unless the documents specifically state that the BOD or HOA cannot be sued, as others have posted, any body can sue anybody.
Part of your duties as a board are to enforce the covenants. If you don't, you are not doing your duty. Many people buy into HOA communities because of, not in spite of, the CC&Rs and have the expectation that they will be enforced evenly and fairly. What you should do, besides trying to convince the other members to enforce the rules, is to line up candidates for the next election who agree with your position.
BTW: If I were not on the board and the board was not enforcing the rules, I would be applying as much pressure as I could on the board to have the rules enforced. I would be calling and e-mailing the members and I would consider the threat of a lawsuit to force the board to enforce the rules.
Ron
SC
SC
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
AnnaD2,
People use the word "SUE" so very lightly now. Watch the news and half of all articles are about someone sueing someone. Doesn't this get real old, real fast? The people who are threatening to "sue the Board", are not aware of an easier, less expensive way to get rid of the lousy Directors and that is thru a recall. And it sure works easier than thousands of dollars for attorneys.Besides that, all Boards in Florida at least, are insured against residents lawsuits. So who loses here?
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
Anna,
Donna is right, suing the board is not where to expend your enegry. Better to work to get the rules enforced.
Donna is right, suing the board is not where to expend your enegry. Better to work to get the rules enforced.
NancyD1 (Florida)
Posts: 447
Posts: 447
Posted:
Donna,
How are boards in Fl insured against lawsuits from residents?
How are boards in Fl insured against lawsuits from residents?
RonaldW (South Carolina)
Posts: 901
Posts: 901
Posted:
Quote:
Posted By DonnaS on 10/02/2007 4:02 PM
AnnaD2,
People use the word "SUE" so very lightly now. Watch the news and half of all articles are about someone sueing someone. Doesn't this get real old, real fast?
AnnaD2,
People use the word "SUE" so very lightly now. Watch the news and half of all articles are about someone sueing someone. Doesn't this get real old, real fast?
In my area, there was a big furniture store fire in which nine firefighters lost their lives. Nobody is not sorry this happened, but the family of one of the lost firefighters is now bringing a "wrongful death" lawsuit against the owner of the store where the fire was, the owner of the property, the manufacturer and installer of the fire doors, and even the manufacturers of the furniture displayed in the store. As much as I (and most other area residents) feel for the firefighters and their families, I feel that this lawsuit is ridiculous. Being a firefighter carries some inherent risk.
I wonder if I had a fire in my residence, would I want city firefighters to attempt to put it out and risk a lawsuit or just let it burn to the ground and collect the insurance?
.
Ron
SC
SC
BradP (Kansas)
Posts: 2,640
Posts: 2,640
Posted:
Anna:
I will reiterate that the board can be sued, I would also question whether your D & O coverage would cover them since they knowingly are negligent in their duties. Perhaps it might be a better tactic for you to plant the seed with the members that want to sue and tell them they have the power to recall board members and how to do it. It will save them a lot of money and you a lot of grief.
I will reiterate that the board can be sued, I would also question whether your D & O coverage would cover them since they knowingly are negligent in their duties. Perhaps it might be a better tactic for you to plant the seed with the members that want to sue and tell them they have the power to recall board members and how to do it. It will save them a lot of money and you a lot of grief.
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
NancyD1,
Our Board has a D&O (Directors & Officers) liability and indemnification policy for 1 million dollars covering our B.O.D. It protects us to cover lawsuits initiated by owners among other things.
Jadedone4 (Virginia)
Posts: 495
Posts: 495
Posted:
BradP and DonnaS, DOL insurance in this particular instance would NOT be applicable - as the board is five members, two who are following the rules, and three who are not. Therefore, the three who are not following the rules have exposed themselves to lawsuit risk, as they can no longer claim that they were acting in a reasonably responsible manner. Part of most (not all) DOL policies is that the board governs and acts in a reasonable manner - when you have three out of five acting against the doc's, I just do not see a valid claim where DOL policy would kick in.
BradP made a good point earlier, if the community has the interest in suing the board, then they must be cohesive enough to have meetings, etc. Vote the bums out of office, recall them, educate the community, get a better set of board members...
This is one instance when it ain't "cheaper to keep(er)...."
BradP made a good point earlier, if the community has the interest in suing the board, then they must be cohesive enough to have meetings, etc. Vote the bums out of office, recall them, educate the community, get a better set of board members...
This is one instance when it ain't "cheaper to keep(er)...."
NancyD1 (Florida)
Posts: 447
Posts: 447
Posted:
Donna,
Any BOD can be sued, and don't count on D&O insurance for all suits. D&O insurance does not cover BOD's if they knowinly violate state laws and the HOA's own documents. D&O will not cover only 2 board member and not the others. There is no pleading ignorance to not following the laws. If you go along with the other board members and know that they are doing wrong, you are wrong.
Everyone should check their D&O policies. They are not standard. There may be items that are not covered that you will want included.
Any BOD can be sued, and don't count on D&O insurance for all suits. D&O insurance does not cover BOD's if they knowinly violate state laws and the HOA's own documents. D&O will not cover only 2 board member and not the others. There is no pleading ignorance to not following the laws. If you go along with the other board members and know that they are doing wrong, you are wrong.
Everyone should check their D&O policies. They are not standard. There may be items that are not covered that you will want included.
RonaldW (South Carolina)
Posts: 901
Posts: 901
Posted:
Quote:
Posted By AnnaD2 on 10/02/2007 3:14 PM
Ok---let me give you more information....I am ON the Board! I am one of two (of five) who insists on enforcing the rules. We've been threatened by (rule-abiding) members, who say they'll sue us if we don't enforce the rules. It's the other THREE who say the members WON'T sue us. I want to reiterate the fact that it can, indeed, be done. Love your comments! Keep 'em comin'.
Ok---let me give you more information....I am ON the Board! I am one of two (of five) who insists on enforcing the rules. We've been threatened by (rule-abiding) members, who say they'll sue us if we don't enforce the rules. It's the other THREE who say the members WON'T sue us. I want to reiterate the fact that it can, indeed, be done. Love your comments! Keep 'em comin'.
For your protection, keep copies of the meeting minutes showing that you voted to enforce the rules. I would also make a motion that the board consult it's attorney concerning enforcement of the rules and the possibility of a lawsuit and keep a record of the attorney's response.
I am curious what "rules" are being broken and the reasons the board members have for not enforcing them.
Ron
SC
SC
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
NancyD1,
You are absolutely right on the insurance covering only 2 Board members and not the others. What these policies say is that they cover the Board as a whole entity. The suit could not pick out individual members to cover or not cover.
I think that the above mentioned Board needs to get on the same page as for enforcement. Their Docs state what is the rule. Directors not functioning as for their fidutiary duty need recalling. Residents have the power to clean this up. Unfortunately, the 2 good directors are in the minority and what is that saying. Do they want responsible enforcement or not in the community? I don't have that answer.
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