Ongoing HOA violation affecting home closing

Started by HubertB • 23 replies • 735 views

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HubertB (Arizona)
Posts: 12

Posted:

Our board is facing an issue with an owner who cut open the communal wall and installed a vehicle sized gate. The original ARC request was submitted in March, 2021 and was kicked back for more information included obtaining feedback from the neighbors. A few weeks later, the owner went ahead and started the unapproved modification anyway. The HOA immediately sent a notice to stop the work, the owner ignored this, completed the gate installation and then failed show up for the next meeting in June. In the interim, the board continued to gather information without owner participation and a majority of the members have stated, for various (good) reasons, they will not vote to approve this ARC request.

Now in August, turns out the owner puts the house up for sale, and we have reason to believe that this non-compliance is actually holding up the house closing and perhaps even affecting the sale price. The owner is now anxious attend the upcoming meeting on Monday to present their case. One of our other board members, who also happens to be an HOA lawyer, is urging the board to change their opinion and vote to approve the ARC, because we stand a chance of being sued by the owner if the closing falls through, or doesn't meet the sale price.

I'm not sure if this just legal speak, or if this should be a real concern. I am a relatively new board member and have no other contacts with the HOA community. I like to think that as board members, we'll always do the right thing for the community, even if it's the wrong thing for an individual situation. I hope my explanation is clear enough and would appreciate any feedback from this forum. Thanks ahead of time.

HJB

TimB4 (Tennessee)
Posts: 21,059

Posted:

It's a real concern.

However, as long as the HOA has documentation of everything you posted, I suspect the HOA has a strong case.

Keep in mind that if you approve this once, it sets precedence to allow others to do the same thing.

SheliaH (Indiana)
Posts: 6,964

Posted:

What Tim said. You can go ahead and let the owner speak his piece, but personally, I wouldn't approve it - he could have said whatever he needed to say at the time the ARC request was submitted. I wouldn't worry about being sued either - in fact, the Association could countersue because the guy violated the CCRs by building this thing without prior approval. As long as you've documented the hell out of everything you should be ok.

Oh, and make sure the man's aware that even if he sells the house, bringing the house into compliance will then become the responsibility of the new owner.

PS - you're a new board member and say you don't have any contacts with the community. To do your job effectively, you need to change that and spend a little time in it. Walk around the community and introduce yourself to the neighbors - you can't make dozens of promises, but can get some insight as to what concerns them.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

PatJ1 (North Carolina)
Posts: 568

Posted:

There have been many posts about ARC requests here. Most of them have concurred that the Board needs to respond within a certain amount of time to deny or approve the request. Sounds like the Board waited too long to deny and the owner made the change. The Board could have initially denied it pending further review.

Since the Board didn't deny it, the Board should maybe focus on whether to pay to have the gate removed and the area returned to it's original condition. That will cost the HOA $, but eliminate the precedence for other's to do the same thing. With the fence being community property, bringing it back to it's original condition shouldn't be an issue even after the house is transferred to the new owner.

Has the owner actually been issued a violation for going ahead with the gate installation?

HubertB (Arizona)
Posts: 12

Posted:

SheliaA, it's possible the gate was actually featured during the sale, as I attended the open house and a vehicle was parked in the backyard. I asked about this and the realtor indicated that it was approved by the HOA and wasn't that great! I reported this to our HOA management and that is when, I believe, the realtor was informed that it was an on-going violation. The house is now listed as sold but contingent. I believe that contingency could very well involve having the gate approved by the HOA.

SheliaH (Indiana)
Posts: 6,964

Posted:

Well, if this owner represented to a buyer the gate was approved when he knew it wasnt, that in itself is a prob - but it's not the HOA's issue. worry about the stuff you can control, namely deciding if this gate is going to be approved or not. I wouldn't, but I dnt live in your community.

If you're on the board, you may As well accept that some people will try you, thinking rules apply to everyone else but them. Or they think threatening a lawsuit will stop the board cold. Sometimes you have to respond by saying "bring it on" and we'll see what a judge says about it.

As I said earlier, the owner installed it knowing he didn't anything from the board approving it. As Tim noted, letting the owner get away with this might signal to other homeowners they can install whatever they like with or without board approvao, creating more problems.

It's not the HOAs problem if this house doesn't sell or the owner has to spend more money to put it into compliance

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

HubertB (Arizona)
Posts: 12

Posted:

PatJ1, I believe the owner was issued a violation and fines. I have have yet to see those documents and dates, but will ask for that. I also agree that the Board did not respond quickly enough, but the owners were issued a stop work notice the week they cut the wall. As mentioned above, the home sale may contingent on having the gate approved for the new owner. They may be fully expecting to park an RV or boat in the backyard, which are also violations. Our lawyer Board member feels we can deal with those separately when the time comes. I know the adjoining neighbors are not in favor of any of this.

The Board is presently attempting to address our response time, as we have one non-participating "member at large", whatever that means, which only serves to increase our quorum requirement and make it impossible to vote on anything in between meetings.

LetA (Nevada)
Posts: 2,679

Posted:

You need to consult with your HOA Attorney, but I feel the HOA can used HOA funds to bring the area back into compliance. Send the bill to the owner, after an allowed period of time the bill goes unpaid, you put a lien on the property for entire amount repair and cost of the lien.

CathyA3 (Ohio)
Posts: 6,299

Posted:

If I were on the board, I'd be tempted to tell the owner to fly a kite at this point. This isn't a minor violation like painting the front door an unapproved color - the homeowner altered/damaged property that does not belong to him. At least in my state, the burden is on the homeowner to understand his rights and obligations, so "nobody complained about the gate" would not work here.

But...

I would also run this past our attorney and get their take on it.

A few things could weaken the HOA's case on this, such as ignoring the violation which could amount to an approval. This also would not work in my state. There is language in our governing docs saying that failure to enforce any part of the provisions does not remove the owner's obligation to abide by them and does not preclude enforcement in the future. The OP and the board should look for similar language in their CC&Rs and/or bylaws.

If the homeowner in this case never requested approval, then any kind of time limit for the HOA to approve is beside the point since the process was never started.

Personal opinion: I think the homeowner is probably SOL, and I hope that's the case because I don't believe in rewarding bad behavior. However, the potential dollars involved in pursuing this may determine which side caves.

AugustinD
Posts: 3,698

Posted:

I am adding to the near unanimity here that the HOA so far appears to be on solid ground in requiring this violation, and any lawful fines related to same, to be remedied and paid before sale. All on the Board should realize that failing to do so gives pretty much carte blanche for people to do whatever, in complete disregard of the covenants and rules. The Board will have failed in its fiduciary duty to act in the best interests of the HOA. Why? Because the covenants, and appropriate lawful rules with a basis in the covenants, are the legal raison d'etre for HOAs nationwide, as given in the Declaration Articles of Incorporation. It's a big deal.

Quote:

Posted By HubertB on 08/27/2021 12:31 AM
The original ARC request was submitted in March, 2021 and was kicked back for more information included obtaining feedback from the neighbors. A few weeks later, the owner went ahead and started the unapproved modification anyway. The HOA immediately sent a notice to stop the work, the owner ignored this, completed the gate installation and then failed show up for the next meeting in June.

Quote:

Posted By HubertB on 08/27/2021 12:31 AM
One of our other board members, who also happens to be an HOA lawyer, is urging the board to change their opinion and vote to approve the ARC, because we stand a chance of being sued by the owner if the closing falls through, or doesn't meet the sale price. I'm not sure if this just legal speak, or if this should be a real concern.

Quote:

Posted By HubertB on 08/27/2021 7:03 AM
I also agree that the Board did not respond quickly enough, but the owners were issued a stop work notice the week they cut the wall.

My queries related to the above points:

-- Do the CC&Rs or rules and regulations require an owner to obtain feedback from the neighbors?

-- So far, I do not see evidence that the Board failed to respond quickly enough. HubertB, why do you say otherwise?

-- I checked Arizona statutes with regard to architectural changes. I think the only statutory requirement that is relevant here is that the architectural committee have at least one director serving on it, and this director must be the chair of the committee. Hubertb, was this requirement met?

-- About the director who happens to also be a HOA attorney: He is not Thee HOA Attorney here. The first words out of his mouth should have been to get the opinion of the HOA's actual attorney. It's a bit problematic for him to be offering legal advice when he in fact does not represent the HOA as its attorney. If he read this, he would rationalize his conduct to date. Fine; whatever. The world knows that U. S. attorneys' are trained to render as needed existentialist, nihilistic arguments in an attempt to win at any cost (and feed the attorneys' egos). Send this issue to Thee HOA Attorney, and post haste.

-- Assuming the proper procedures were followed; and while waiting for the HOA's actual attorney to opine; ask said director who happens also to be a HOA attorney whether there is a risk that other owners will sue because the Board did not enforce its covenants and rules pertaining to architectural changes. If this director does not, at a minimum, respond with, "There's always a risk someone will sue," then this is the final proof for me to conclude he is incompetent.

PatJ1 (North Carolina)
Posts: 568

Posted:

You mentioned one of your Board members is an HOA attorney and is offering their opinion. Consult an outside HOA Attorney who doesn't have an interest in the outcome of your situation,

HubertB (Arizona)
Posts: 12

Posted:

AugustinD, thanks for chiming in

-the CC&R / Design Guidelines indicate that the Board should include feedback/recommendations from the neighbors, but my understanding is the Board is not bound to follow those recommendations.

-I felt that the board should have voted on the ARC request at the June meeting, even if not approved, it would give more timely feedback and allow the owner to rethink the proposal. Instead, the board decided to kick the can down the road, so to speak, for another 3 months.

-We don't have a separate Architectural Committee but have been discussing its creation as of late. It would be composed of at least two and possibly three of our four executive members.

-I will suggest consulting our actual HOA attorney before taking the vote.

-Our member lawyer is president of the Board, not sure if that's what you mean by director. I have spoken to numerous other residents about the gate situation, and while all agreed that this is an outrageous violation, only one has stepped forward to provide feedback to the board. So I doubt the board would be sued if we allow the gate.

-I do believe our member lawyer is fully competent, but he has only been president for 6 months and a community resident for only 8 months. I became vice-president same time as him, but have been a resident for many years and have attended many past meetings as a resident. So I feel in some ways I have a better perspective.

In fact, I bought my property at auction in 2009 and it had a vehicle gate grandfathered in, although at the time I was clueless about these matters. From what I can gather, back in the nineties, the previous owner engaged in a lawsuit with the HOA over this gate. Since that time, there have been no other vehicle gate modifications to any of the other properties or communal walls within our HOA. Although my gate not pose the same concerns/problems/hazards that the current ARC request does, I have been accused of having a double standard by the owner of the new gate in question. Just thought I would throw that in!

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By HubertB on 08/27/2021 9:58 AM

-the CC&R / Design Guidelines indicate that the Board should include feedback/recommendations from the neighbors, but my understanding is the Board is not bound to follow those recommendations.

In my experience and especially at this point in the thread, your quoting verbatimg what the CC&Rs and design guidelines say is key to your getting useful input from this forum on this issue.

Quote:

-I felt that the board should have voted on the ARC request at the June meeting, even if not approved, it would give more timely feedback and allow the owner to rethink the proposal. Instead, the board decided to kick the can down the road, so to speak, for another 3 months.

The application for approval was submitted in March. When did the Board request the applicant to provide the neighbors' feedback to the application?

Do the CC&Rs or design guidelines mandate a certain timeframe for this process?

Quote:

-We don't have a separate Architectural Committee but have been discussing its creation as of late.

I await exactly what the CC&Rs state on the subject. For now, I will say that the Courts tend to allow the Board to act in place of any Architectural Committee the CC&Rs require.

Quote:

Our member lawyer is president of the Board, not sure if that's what you mean by director.

Please be aware that the HOA lexicon distinguishes between officers (president, VP, secretary, treasurer) and directors. Nearly always: The membership elects directors. The directors select the officers. The directors in total compose the Board. The directors vote on issues. Officers have specific responsibilities but do not have a vote on HOA issues. Depending on what the Bylaws say, people may sometimes serve as officers without being directors.

Quote:

I have spoken to numerous other residents about the gate situation, and while all agreed that this is an outrageous violation, only one has stepped forward to provide feedback to the board. So I doubt the board would be sued if we allow the gate.

Someone could move in and disagree with the Board's decision.

Quote:

In fact, I bought my property at auction in 2009 and it had a vehicle gate grandfathered in,

"Grandfathering" is one of the most abused words in the HOA world. Please explain exactly what you mean by "grandfathering" here. Did the previous owner win a lawsuit against the HOA for this? What is there in writing that allows your gate?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Who owns and is responsible for maintaining the wall?

Escaped former treasurer and director of a self managed association.

HubertB (Arizona)
Posts: 12

Posted:

I received some feedback via email that did not show up in this thread. I'm not sure where to respond, so I decided combine everything and just post it here:

Feedback:
- your quoting verbatimg what the CC&Rs and design guidelines say is key to your getting useful input from this forum on this issue.
- who owns and is responsible for maintaining the wall?

Here is the CC&R section on common walls:

Section 3.03. Common Walls. The rights and duties of
the Owners with respect to common walls shall be as follows:
A. Each wall, including patio walls, which is constructed
as part of the original construction of the
Dwelling Unit, any part of which is placed on the dividing line
between separate Dwelling Units, shall constitute a common wall.
With respect to any such wall, each of the
adjoining Owners shall assume the burden and be entitled to the
benefits recited in this Section 3 .03, and to the extent it is
consistent with this Section, the general rules of law
regarding common walls shall be applied.
B. The Owners of contiguous Dwelling Units who have
a common wall shall have reciprocal easements for support and
an equal right to use such wall provided that such use by one
Owner does not interfere with the use and enjoyment of same by
the other Owner.
C. Unless other provisions of this Section 3 .03 are
applicable, the costs of reasonable repair and maintenance of a
common wall shall be shared equally by the Owners who make use
of the common wall.
D. In the event any common wall is damaged or
destroyed through the act of one adjoining Owner, or any of his
guests or agents or members of his family (whether or not such
act is negligent or otherwise culpable) so as to deprive the
other Owner of the full use and enjoyment of such wall, then
the first of such Owners shall forthwith proceed to rebuild and
repair the same to as good condition as formerly without cost
to the other Owner.
E. In the event any common wall is damaged or
destroyed by some cause other than the act of one of the
adjoining Owners, his agents, guests or family (including
ordinary wear and tear and deterioration from lapse of time),
then in such event, both such adjoining Owners shall proceed
forthwith to rebuild or repair the same to as good condition as
formerly at their joint and equal expense.
F. Notwithstanding anything to the contrary herein
contained, there shall be no impairment of the structural
integrity of any common wall without the prior consent of the
Board . In addition to meeting the other requirements of these
Restrictions and of any building code or similar regulation or
ordinances, any Owner proposing to modify, make additions to or
rebuild his Dwelling Unit in any manner which requires the
extention or other alteration of any common wall shall first
obtain the written consent of the Board which shall determine
the adjoining Owner's preference concerning the proposed
modification, extension or alteration of the common wall prior
to giving any written consent thereto.
G. In the event of a dispute between Owners with
respect to the repair or rebuilding of a common wall or with
respect to the sharing of cost thereof, upon written request of
one of such Owners delivered to the Association, the matter
shall be heard and determined by the Board ; the judgment of the
Board in this matter shall be final and binding.

\
NOTE: I've also attached the "Design Guidelines" which were created 18 years after the CC&R, in 2010, which also contains verbiage relating to this thread, but I did want to clutter up this thread too much.

Feedback:
- The application for approval was submitted in March. When did the Board request the applicant to provide the neighbors' feedback to the application? Do the CC&Rs or design guidelines mandate a certain timeframe for this process?

I believe the ARC request was submitted in early Febuary, I'm sorry I don't have the exact date. The Board meeting was on 3/3/21. The decision by the Board was to request more information, including the neighbors feedback, which I am told is the same as (temporarily) rejecting the request. I also don't have the exact date the owner recieved that, and exactly how it was worded. I am trying to get those documents from our management company in order to build a detailed timeline.

The CC&R states:

Section 3.05. Architectural Control. Following the
original construction and buildout of the Property by
Developer, or its assigns and successors in interest, no
building, fence, wall, or other structure shall be commenced,
erected or maintained upon a Lot, nor shall any exterior
addition to, or change in, or alteration of a Dwelling Unit or
the exterior color scheme, roof or finish thereof be made until
the plans and specifications showing the nature, kind, shape,
height, materials, and location of the same shall have been
submitted to and approved in writing as to harmony of external
design and location in relation to surrounding structures and
topography by the Board of Directors, or by an architectural
committee composed of three (3) or more representatives
appointed by the Board . Provided, however, that so long as
Declarant owns any Lots, it retains the exclusive right to
appoint the architectural committee . In the event the Board or
its designated committee, fails to approve or disapprove such
design and location within thirty (30) days after said plans
and specifications have been submitted to it, approval will not
be required and this Section will be deemed to hie been fully
complied with . Improvements constructed or to be constructed
by Declarant do not require architectural committee approval.

Feedback:
- Please explain exactly what you mean by "grandfathering" here. Did the previous owner win a lawsuit against the HOA for this? What is there in writing that allows your gate?

I don't have any real information on this, perhaps it was inappropriate to publish it that way. I just spoke to another resident who was an original (1992) board member and he does not remember a lawsuit. He is going to contact the individual who was the HOA manager at that time to try and get more information. I also did a google search for a lawsuit and came up empty. The fact remains that the owner who is currently in violation feels like "You have gate so why can't I?"

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AugustinD
Posts: 3,698

Posted:

HubertB, thank you for providing this information. I would still vote to send this to Thee HOA Attorney. Otherwise: For now; based on all you have presented so far; and if I were on your HOA's Board, I would vote to maintain a violation on this home, and if the HOA has a fine schedule, begin fining. I would also vote to require the owner to pay for the cost of the HOA returning the wall to its original state. I would have the HOA attorney send the letter, written in pit bull tone. Here is my reasoning:

-- CC&R 3.03 requires the Board to determine the preferences of the adjoining neighbors for this proposed common wall modification.

-- The Design Standards states: "In some cases, the Committee may request a written agreement of your neighbors to be submitted along with your application as one of the conditions of approval."

-- The Design Standards enacted in 2010 appear to be consistent with either the courts' requirements (nationwide and in general) to provide such standards; any statement in your CC&Rs about the HOA having the authority to enact reasonable rules and regulations, not exceeding the authority of the covenants themselves; or both.

-- In my opinion, the above quoted section of the Design Standards is consistent with CC&R 3.03 and is lawful, meaning a court would enforce it.

-- The signs are that the Board requested that the owner provide the neighbors' feedback and did so in a timely fashion.

-- If the owner never obtained the neighbors' feedback, then his application was either technically not submitted or was incomplete. The owner knew it was not complete. In my opinion, this means the 30 day clock never started.

-- One way or another, the Board learned that the adjoining owners do not want this modification to the common wall, and the committee has also rejected this wall, presumably with sound reasoning, hopefully including the adjoining neighbors' reasonable objections.

The Board is in a bad position: If the Board disapproves the wall et cetera, the owner may sue. If the board approves the wall, the adjoining owners may sue; the HOA is stuck with maintaining this gate; and other owners will go forward with modifications without following the CC&Rs and Design Guidelines.

The HOA President has not convinced me that the risks here are not pretty much equal regardless of which position a board majority takes.

If this owner threatens litigation, report back.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By HubertB on 08/27/2021 7:03 AM
PatJ1, I believe the owner was issued a violation and fines. I have have yet to see those documents and dates, but will ask for that. I also agree that the Board did not respond quickly enough, but the owners were issued a stop work notice the week they cut the wall. As mentioned above, the home sale may contingent on having the gate approved for the new owner. They may be fully expecting to park an RV or boat in the backyard, which are also violations. Our lawyer Board member feels we can deal with those separately when the time comes. I know the adjoining neighbors are not in favor of any of this.

The Board is presently attempting to address our response time, as we have one non-participating "member at large", whatever that means, which only serves to increase our quorum requirement and make it impossible to vote on anything in between meetings.

I'm having some trouble understanding this issue about not responding quickly enough.

I think you said in your original post that an ACR was submitted and the Board kicked it backed because of inadequate or insufficient information. As others have said, the clock on the HOA's responsiveness ended when the request got kicked back. If the owner failed to respond appropriately, that's on him.

When you saw that the owner started renovations without an approved ACR, you sent a cease and desist notice. If the owner failed to stop at that moment, all costs he incurred after that letter are on him, not the HOA.

I cannot see where your HOA was lagging. Notice was immediate after learning of the circumstances. Any delay was on the property owner.

Just wondering - you say that there is a sale pending on the house. Does AZ issue certification or estoppel letters when a house is sold? It's standard practice here. Any outstanding violation is identified in the letter. In fact, around here, it's only when a house gets sold that we have the chance sometimes to bring houses up to spec.

On the issue of being sued for not approving the change, that's one of the risks that a certification or estoppel letter would diminish. The letter puts everything from the HOA's perspective on the table. And it's up to the Buyer and Seller to figure out who's going to bring the house up to HOA spec.

Sikubali jukumu. Read all posts at your own risk.

HubertB (Arizona)
Posts: 12

Posted:

We had our Board meeting on Tues 8/28/21. According to the HOA management and the owner, there was multiple communications about the violation. The Board was not involved or informed about any of the following while they were occurring, and none were presented at the 6/15 meeting. This is reconstructed to the best of my ability, using a timeline provided by the HOA management the day of the 8/28 meeting:

-The owner responded to the 3/24 stop work notice, that they had not heard within 30 days, so the ARC must be automatically approved. (The ARC was originally submitted on 2/26 so it was actually well within 30 days.)

-The owner stated after the stop notice, the waited another 30 days and did not receive any further communication from the HOA. Then they started work again, completing the gate a few weeks later. (I did observe the wall opening covered with plywood sheets for several weeks with no work being done.)

-The owner never verified or acknowledged the Board's intention to review the by-laws, if such modifications were even permitted, either at this meeting, or in the five months leading up to it.

-At some point, the owner was advised by the HOA management to resubmit the ARC request adding a privacy screen. The owner did add a privacy screen, but did not submit the second ARC until 8/19, when they were trying to close on the house.

At the 8/28 meeting, I presented the CC&R and Design Guidelines, per the Board request at our 3/3 meeting. I showed why cutting open communal walls was contrary to the letter and spirit of our by-laws. (My 25 year old gate was again referenced as a double standard). That the owner did not provide any feedback from the neighbors. (The owner claimed ignorance) Parking and driving over the landscaping was brought up, as well as the gas meter less than 3 feet away. Then the HOA management and our lawyer member presented their notion of potential legal risk by holding up the closing.

The original ARC (cut open the wall and install a vehicle gate) was unanimously voted down, but the second ARC (add a privacy mesh) was approved by a 3-2 vote. A heavy fine was levied for the running violation from 3/23-8/19 ($25/day). The house immediately closed and the new owner moved in two days later. I had not yet seen any indication that the fine has been paid.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By HubertB on 09/04/2021 11:29 AM

The original ARC (cut open the wall and install a vehicle gate) was unanimously voted down, but the second ARC (add a privacy mesh) was approved by a 3-2 vote.

Oh well?

Quote:

A heavy fine was levied for the running violation from 3/23-8/19 ($25/day). The house immediately closed and the new owner moved in two days later. I had not yet seen any indication that the fine has been paid.

It might have been covered in the closing paperwork. If not, then I think collecting from the new owner won't be fun.

Too bad. Owners at the HOA need to know the HOA means it when it says certain steps must be followed to get approval for an ARC application.

BillH10 (Texas)
Posts: 1,217

Posted:

Hubert

I have read this message string and the other you recently posted about a faux pas which has owners upset.

I believe you have a management company. Where are they in all this? Both strings of messages you began seem to indicate the Board is not clear on its responsibilities to the Association and the owners. Or, has gone somewhat rogue. Your comments regarding notice to owners of Board meetings was very unsettling, especially after someone else posted the Arizona requirements for BOD meeting notices.

When the stop work letter was issued and nothing more was heard by the owner from the Association or Board in 30 days, why not? It seems to me the letter itself should have stated what would take place next, and when. Who was responsible in the hierarchy of the Association for next steps? Was the Board of the opinion stopping the work had solved the problem and there was nothing more to be done? Stopping the work put a tourniquet in place to stop bleeding, the incision still needed attention. The Association was responsible for aggressively addressing what had taken place, including initiating fines if necessary, until both parties were satisfied the situation was resolved if that was possible.

I strongly recommend you and the other members of the Board take a long hard look at how you are operating. Discuss what has taken place with the PM, understand who is responsible for what and what needs to be done the next time.

In both cases, your property manager should have been jumping up and down to bring matters to the attention of the Board for action. If this was not taking place, you should consider changing management companies. If the PM was doing so, the Board needs to take several steps back and evaluate its actions. You folks seem to need a crash course in association management.

BillH10 (Texas)
Posts: 1,217

Posted:

Hubert

My apologies. I mixed up your name with that of another person from Arizona with a similar name who posted of an issue he has.

I wished to comment about the attorney who is also president of your Board.

One of the members of the board of a client is an attorney. Shortly after he was elected, I received a letter from the managing partner of the firm in which he is a staff attorney. It basically stated nice words about the board member and how the law firm encourages employee participation in the community.

It went on to say the board member could not render legal advice to the Board under any circumstances, that the firm's code of conduct forbade his doing so.

Your board president should be not one, but four arms lengths away from offering legal advice to the board.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By BillH10 on 09/04/2021 4:03 PM
... snip ...

One of the members of the board of a client is an attorney. Shortly after he was elected, I received a letter from the managing partner of the firm in which he is a staff attorney. It basically stated nice words about the board member and how the law firm encourages employee participation in the community.

It went on to say the board member could not render legal advice to the Board under any circumstances, that the firm's code of conduct forbade his doing so.

Your board president should be not one, but four arms lengths away from offering legal advice to the board.

That's interesting.

I don't want to get us too off topic, but occasionally we get questions about possible conflicts of interest when professionals in jobs that are adjacent to HOA/COA business serve on association boards. For "adjacent" think realtors, owners of landscaping companies, builders, and the like.

I think that the latter group doesn't have the same level of fiduciary duty to their clients as lawyers do, and that ethics violations by the latter don't have the same potential for blowing up - but overall these seem to be similar situations. They differ in degree but not in kind.

Back to the thread in progress, and I hope "Gate-gate" doesn't continue to cause problems for the OP's association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Hubert

It appears neither the MC nor the BOD properly followed up thus may well have opened the association up to legal problems had this issue stalled the closing. I believe the BOD did the best (not the proper) they could by letting the closing happening. Also, I question your altruism in this matter considering you have a vehicle gate in the wall.

HubertB (Arizona)
Posts: 12

Posted:

Understand but I have tried to be fair minded about this. Let me add that my property with an inherited gate is different in several significant ways to the property/gate under question.

1) My property is the largest lot in the HOA, while the lot under question is one of the smallest. This means the end of my vehicle gate is about 12 feet away from the nearest intersecting community wall. The gate in question is only about 3 feet, so it definitely will affect the integrity of that wall (these block walls are only 4" thick, commonly called concrete, or privacy "fences"). The neighbor on that side definitely doesn't want a gate right next to her wall.

2) My vehicle gate is on the same side as the walk-thru entrance gate. The gate in question is on the utilities side of the house. That means the driveway runs right past the gas meter and electrical junction box, and directly over those connections. Being the smallest lot, space is tight, and I'd estimate the clearance to the utilities is less than 3 feet (which I believe is code).

3) I suppose one could question my altruism, if I were voting to allow another vehicle gate, but since I am voting against it, to uphold what I believe is the letter and spirit of the by-laws, not sure what the argument would be.

4) I will add that one board member who voted in favor of this vehicle gate, happens to have his own ARC request for a vehicle gate, submitted about the same time frame. In our 3/3 meeting, he agreed with the rest of the board that we needed more information, input from the neighbors, and an examination of the CC&Rs and Design Guidelines. So far he has failed to follow up on his ARC, except to vote yes on the gate in question.

Hubert

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