Illegal tow & fiduciary duties

-- Under the law of agency, the security company is an agent of the HOA/COA. If the security company's actions damaged the vehicle, then the COA/HOA might very well be liable for this damage.

-- What is in the best interests of the HOA/COA here is debatable. If this practice goes on, a small mess may explode into a bigger mess. If damage results to a vehicle down the road, this will cost the HOA/COA more money.

-- I would use one of the anonymous email services on the net to send an email to the owner, suggesting that he ask for a hearing with the board, pursuant to California's HOA/COA statute. (I am expecting a lot of negativity from this forum on this suggestion.)

-- I also strongly agree about asking that this topic be put on an open meeting agenda. See https://www.davis-stirling.com/HOME/Setting-the-Agenda . In your request for this to be put on the agenda, include a draft motion on the topic, so a vote will actually occur.

-- Can you please explain why you think the tow was improper?

Careful review of our parking and security policies, along with having more than one unbiased party review them as well.

PaulL12,

-- I presume we are talking about damages from the sticker. Googling suggests the statute of limitations for property damage is three years in California.

-- How come you have not reviewed the Davis-Stirling site for the limitations on what may be discussed in executive session? See https://www.davis-stirling.com/HOME/Executive-Session-Meetings . I do not see how discussing the correct implementation of enforcement of the parking rules is an executive session item.

-- I gather the bigger problem is you are a minority on a board with a majority that does not value your point of view. Oh well. Work towards getting a majority on the board who feels as you do. Or seriously: Move.

AugustinD - Thanks for your responses.

So my response is easier to read, I am not using the quote feature at all :-)

Ignore my previous THREE responses. The quotes messed up the format. The lack of a "preview post" or "edit post" option on this page is problematic.

-- This sounds like an improper decision made entirely by your security company. If you get directly involved or involve the Board at this time, then you are accepting some sort of responsibility for what was done, which doesn't sound like it should be the case.

Yep

-- Further, there could be additional liability pertaining to this if the vehicle owner later claims damage to their vehicle as a result of the tow. So the firm and/or HOA could potentially owe the vehicle owner significantly more than the cost of the tow (contrary to the prior poster's thoughts).
See my later question about statute of limitations.

-- Under the law of agency, the security company is an agent of the HOA/COA. If the security company's actions damaged the vehicle, then the COA/HOA might very well be liable for this damage.
What sort of statute of limitations is there on claiming damages for something like this? For example, let's say the owner of the improperly towed vehicle discovers that the tow was improper eight months from now? A year and a half from now?

-- What is in the best interests of the HOA/COA here is debatable. If this practice goes on, a small mess may explode into a bigger mess. If damage results to a vehicle down the road, this will cost the HOA/COA more money.

-- I would use one of the anonymous email services on the net to send an email to the owner, suggesting that he ask for a hearing with the board, pursuant to California's HOA/COA statute. (I am expecting a lot of negativity from this forum on this suggestion.)
As someone else eloquently pointed out, it would seem like a strange coincidence if the owner of the vehicle came forward with this complaint shortly after the rest of the board doesn't see the light between the trees (or refuses to) as I have.

-- I also strongly agree about asking that this topic be put on an open meeting agenda. See https://www.davis-stirling.com/HOME/Setting-the-Agenda . In your request for this to be put on the agenda, include a draft motion on the topic, so a vote will actually occur.
Open meeting agenda will mean the entire community hears about it, in which case the owner of the vehicle would likely hear about it. It is currently an executive session matter. Is this the type of thing which can easily be converted from an executive session matter to an open meeting agenda item? If so, what is the process for that?

-- Can you please explain why you think the tow was improper?
Careful review of our parking and security policies, along with having more than one unbiased party review them as well.

>>>I have a feeling you're primarily concerned about this because a friend or visitor of yours is the owner and perhaps you're embarrassed he or she got towed while visiting you
The owner of the vehicle does not have a connection to the property through me or anyone in my house.

>>>I also recall you've posted at least two or three posts on parking at your building, and they all sound like you're trying to push certain issues because you have a personal interest in it.
Earlier concerns of mine pertained to both the board not considering ideas which would be beneficial to homeowners and to overabundance of common space. This pertains to proper enforcement of rules.

>>>but I have to wonder what prompted the tow in the first place - if the car was in the parking lot in violation of the rules, there may not be any there there.
Whether or not the vehicle was in violation of the rules is immaterial to this discussion. Based on our rules & guidelines for towing, this vehicle was not supposed to be towed. And I have very strong evidence to support this.

If the victim of this improper tow never comes forward to complain about it being an improper tow and/or requesting a refund - and the board finds it to be an improper tow, would it be appropriate practice for the board to A) authorize reimbursement to the victim; B) not authorize reimbursement to the victim

In my opinion, hypotheticals and speculating often do not yield progress. This is one such instance.

Given that you do not want to substantively help this person whose vehicle was towed (at some expense to the owner, I presume), I suspect you are stuck with accepting the will of the board majority for the immediate future.

I think I understand a bit more about the *potential* conditions of the illegal tow.

When I lived in a coastal condo, we had a rule that vehicles could not be backed into parking spaces. The state mandated that vehicles have a license plate both on the front and back. I never understood the (logic of the) ban against backing in. I've also lived in states that had no such ban against backing in although the vehicles had one license plate only, and it was on the back of the vehicle. I understand how such a rule would make it easier for people to read license plates, but with as tight as many of the parking spots are, some of us couldn't get out of our vehicles unless we backed in. We also had two massive pilings between some of the parking spaces which further complicated getting in & out of our vehicles. LOL

I agree.

"Returning to the O.P's subj. line about fiduciary duty, I'l repeat such duty as a director is loyalty to and careful inquiry related to the corporation, not to an individual owner."

Perhaps I am misunderstanding this comment but I have a hard time accepting this. If Amazon overbills me and I am not aware of it, should Amazon keep the money because it's in the best interest of the company even though it was their mistake?

Also, I personally feel that I have a strong fiduciary duty to every owner of the HOA to represent them fairly and equally and that includes representing their financial interests in an ethical manner. I realize that in this case the security company may be at fault but if your comment is a general statement that a board members fiduciary duty does not extend to a individual owner, that's certainly not how I interpret.

Heh. I think this topic has come up here before.

Serious armchair lawyering, reinforced by -- you guessed it -- google: A bank error in favor of John Doe's account, where John Doe chooses to say nothing, may result in a successful bank civil court claim of "unjust enrichment" against John. The John (and Jane) Does of the world do have a duty to return money that is not theirs under the rules of contract. Same for corporate America.



Ya know, taking PaulL12 at his word that the towing company violated the rules for towing, and the Board either knows the towing company is shady or is ignoring the possibility of same, this Board is not playing on the up-and-up. At times like this (here in the safety of my own home, utterly anonymous except maybe when an expert doxer/hooligan comes along), I argue (rationalize? you choose) that anonymous emails can serve the public good (or HOA membership good).

I continue to see nothing wrong with an anonymous email (using one of the widely available free, protected services for same) informing the owner of what the towing policy is; that it may not have been properly applied to the owner's vehicle; and that the owner may want to inquire more about this from the board. And the sender of said proposed email should give the argument that anyone who use to watch Will Gardner in "The Good Wife" knows well: You do not know anything for sure. You can present the owner with what route he/she might wish to follow, if in fact the owner believes XYZ. But you yourself do not know XYZ for sure. Deny, deny, deny.

Else as far as I am concerned, PaulL12 is complicit in ripping off the owner and unjustly enriching either the towing company, the HOA or both.

Anyone calling this "peer pressure" being applied to PaulL12: Correct. But I suspect he won't do what I propose anyway. [bawk cluck cluck cluck bawk and other chicken noises] [friendly wink]

Good post by JohnT38, afaic. Refreshing, actually.

It starts with one owner at a time.

Kerry I understand the intent of your message and I don't question that you are an asset to your HOA. However, we are going to have to agree to disagree. I think we both may ultimately be saying the same thing but I have a different take on this.

I view every homeowner as a stock holder of the HOA corporation which means they are co-owners. Therefore by default my fiduciary responsibility extends to every owner because they are THE corporation. I don't care if what I am saying is legally correct or not. It's just my approach on how I conduct myself as president of our HOA. I'm a stickler for following our governing documents to a tee but at the same time I owe it to the community to be flexible when I can and assist them on an individual basis when warranted. In other words part of my fiduciary responsibility is to provide service to each individual owner who also happens to be co-owner of the corporation.

Again, the comments I've made were more about your assertion that the fiduciary responsibility does not extend to the owner more than it was about the OP's situation.

Perhaps you misunderstood me. I do want to help the person whose vehicle was towed. Since it seems I would be violating my board duties by pointing this out to the person whose vehicle got towed, the only route I have to go it to pass on the info I have to the rest of the board. Which seems to me is precisely what would happen if the victim complained.

Perhaps I should rephrase my first question so it doesn't come off as a hypothetical. When a board finds a tow to be improper, but the victim has not complained or come forward, is it more of a standard practice for the board to take the initiative to give the victim a refund or to stay silent on the matter - perhaps with the hope that the victim never comes forward?

Haven't read every post in this thread. So apologize if I missed something.

It reminds me of a situation my HOA had around 8 years ago with a management company. When a homeowner sold a house, she would order a resale certificate from the MC. The MC prepared the resale package and the seller paid the MC for it. Money went directly from the seller to the MC. No involvement by the HOA.

The problem was that our contract with the MC set a fixed rate for resale certificates. But the MC was charging sellers $100 to $200 more than the contract rate. And the sellers paid what they were charged. None of them asked if we had a contract rate. They all thought that the MC was just doing their job. No reason to question.

Our Board decided that this behavior by the MC was unacceptable. So we reached out to all recent sellers and asked what they paid for the resale certificate. Then we went back to the MC and demanded that the sellers who were overcharged be reimbursed.

One could say that we had no obligation to sellers, because the wrongdoing was not the Board's, and by the time we learned of the problem, they were no longer community members that the Board had a fiduciary responsibility to.

Yet, IMO, that kind of thinking misses the mark. The Board does have a fiduciary responsibility to assure that contractors operate within HOA standards. You don't escape that responsibility by shifting focus to the owner who knowingly or unknowingly was mistreated. This has a lot to do with the relationship between Board and contractor, and a lot less to do with impact on the homeowner. Then again, I do not believe that the improperly behaving contractor should be compensated for their obvious disregard for established HOA standards. In our case, we went the extra mile of demanding reimbursement. It wasn't so much about the money. It was about the contractor knowing that they could not disregard standards set under the contract.

Also, someone on this thread seemed to be saying something about not stepping in to avoid liability for damage to a vehicle. IMO, that thinking is inconsistent with being a fiduciary.

The HOA didn't charge the owner, the tow company did. The security company authorized the tow. Either the tow company or the security company reimburses the owner.

CASE CLOSED!