Injunctive relief against HOA's

What is it for? Is the HOA suing or are you wanting to sue your HOA (I.E your neighbors)? Have to have a bit more details than what was provided.

We can help if we have details

I think you're right about small claims. Legal Aid has put out a booklet about small claims, but it's not very in depth. Googling is next.

I've read outlines about NC mediation, but I've never seen the statute! Fantastic, Augustin! I haven't given mediation much thought because I really doubt the Board would go for it, but as the old saying goes, nothing ventured nothing gained.

Probably not a good idea to get down to the nitty gritty on a public site, Henry, but generally, I've been battling this HOA for almost 6 years.

As a new owner, it started out pointing out what I then assumed were just missteps or misstatements. As time passed, it became obvious that this and previous Boards, have very little knowledge of our governing documents and have just done what they want to do regardless of whether it was directed by our documents.

One of the most blatant and heinous stunts was this past summer when they announced there would be only 2 vacancies to fill on the Board, instead of the 5 that should have been. 3 vacancies every year and filling unexpired terms when it's called for.

Like a recent post where a Board tried to apply the Special Assessment clause to a homeowner to collet some attorney fees, our Board either ignores our documents or corrupts them to fit their narrative.

They have told the homeowners that they can operate with as few as 3-6 Board Member and that they can withhold filling unexpired vacancies until it's convenient for them fill them. Good work if you can get it. Additionally, they moved a Board member, elected to fill an unexpired vacancy that expired in 2021 to 2022. This too is unlawful.

They think they can set policies without owner approval, another huge misstep. They recently adopted a transfer fee on unit sales to generate additional income. They even posted how the Board voted, something I've never seen from them. I love the idea! I'm all for it, but it's unlawful and most likely unenforceable. If a savvy homeowner sold their unit and the HOA took them to court to collect the transfer fee, all the homeowner would have to do is show the court our Bylaw that clearly states all of our policies must be approved by the homeowners.

One could argue that maybe they made honest mistakes. I have too much written proof to the contrary.

The Board, up until this year, used to post a roster of Board members and the expiration of their terms. In 2020 the roster correctly listed the Board member who's term was moved, as expiring in 2021. No roster last year, the Board member did not run for reelection but was moved to expire in 2022. On our web site they show 4 Board members with expiring terms in 2022, including the unlawful guy. Under no circumstances do we ever have 4 members elected for a 3 year term. It is always, each year, 3 members elected for a 3 year term, and any others to fill unexpired vacancies, none of which are 3 year terms!

There's so much more but the pattern is all the same, they have very little knowledge of our governing documents and do what they want, when they want.

Thanks for your input, Kerry.

Nationwide "transfer fees" are a hot button item. Some states have statutes regulating them. Transfer fees are also very much misunderstood.

I just googled and see North Carolina statute 39A-3 addresses transfer fees. This 2019 article seems like a good introduction to the North Carolina law:

https://lawfirmcarolinas.com/blog/what-an-hoa-transfer-fee-is-and-what-it-is-not/

This excerpt from the link above may be particularly helpful:

Any charges that might be permitted for setting up a new homeowner or are related to obtaining pay-off statements for assessments, etc. NCGS 39A specifically notes that the definition of “transfer fees” does not include “any reasonable fee charged for the preparation of statements of unpaid assessments pursuant to G.S. 47F-3-102(13) or resale certificates or statements of unpaid assessments pursuant to G.S. 47C-3-102(12).” Calling such items “transfer fees” can lead to confusion and even claims that state law is being violated when it is not.

Sometime after 2010, I recall selling a condo not in California to a couple who was using a California lender. Per the covenants, the condo association reported to the title company that the buyer would have to pay three months of assessments into the COA's reserves as part of the sale. Furthermore I pointedly emphasized this fact in my seller's disclosure, right off the bat. In California transfer fees are not allowed to be imposed on a buyer. So the lender said. I have not checked the law. The lender said, "We won't sign off on the mortgage unless the seller pays this 'transfer fee.' " I have never seen realtors' heads swivel so fast. The realtors leapt to explain to the lender that this was not a transfer fee; quoted the law and its relevant definitions; quoted the covenant; pointed out that charges for additions to the reserves are not "transfer fees" and so on. Upon hearing from the realtors and reading the covenants, the lender accepted that the buyer would have to pay the {three months of assessment} into the reserves, pursuant to the covenants.

WaltH1, if you want to discuss the transfer fee more, then do state how much the transfer fee is and for what the Board claims the fee is compensating the HOA.

The transfer fee I'm referring to was recently approved by the Board of Directors to generate extra revenue for the HOA.

I wonderful idea I think, but unenforceable, I believe.

Article III Board of Directors
Section 8 - Powers & dutites
(e) With the approval of the Unit Owners having the majority of the total votes, the
adoption and amendment of such reasonable rules and regulations as it may deem
advisable for the maintenance, conservation, and beautification of the Property, and for
the health, comfort, safety, and general welfare of the owners and occupants of the
Property. Written notice of such rules and regulations shall be given to all owners and
occupants and the entire Property shall at all times be maintained subject to such rules
and regulations.

Guess you missed the point where I said I'm for the fee. It just wasn't properly approved. Maybe playinng by the rules is not how you ran your Board.

I don't have to run for office to be concerned about how the Board runs the HOA, and yes I have all our governing documents at my finger tips, and know them much better than our Board, and that's sad. Are you familiar with your HOA's governing documents?

When I file a grievance with our Board, I include a copy of the rule being abused. Did You?

Sorry, I have no idea what you mean when you say, "If not running for a free no pay volunteer job, then why make everyone pay? Make who pay?

Right you are, Augustin, and Oh, how I appreciate your taking the time to print the statute.

Hot button indeed. If I read it right, the lender had not done his homework. I had never seen 38A, but it defers to 47F & 47C.

In North Carolina, real transfer fees are normally State, county, or city related and are usually necessary to close the transaction.

The statutes basically backup up the HOA's governing documents, which usually states that anything owed to the HOA doesn't disappear.

Now, in North Carolina, is doesn't matter who pays at closing, Buyer or Seller, as long as it's paid.

Below is the recent fee passed by the Board and below it the section of our By-Laws requiring owner approval of policies and rules.

Email motion for Transfer Fee
Wed, Nov 10, 2021 at 4:44 PM
A Board member made a motion for The Condo to have a transfer fee in the amount of $1,250.00
for a 1 Bedroom and $1,950.00 for a 2 Bedroom effective December 1, 2021. This fee is to be waived if
the owner of the unit(s) decides to Quit Claim, transfer, or sell their unit to a husband, wife, daughter or son.

ARTICLE 111
BOARD OF DIRECTORS

SECI'ION 8. Powers and Duties. The Board of Directors shall have the powers and duties
necessary for the Administration of the affairs of the Condominium and may do all such
acts and things, except such acts as by law or by the Declaration or by these By-Laws
may not be delegated to the Board of Directors. Such powers and duties of the
Board of Directors shall include, but shall not be limited to, the following;

(e) With the approval of the Unit Owners having the majority of the total votes, the
adoption and amendment of such reasonable rules and regulations as it may deem
advisable for the maintenance, conservation, and beautification of the Property, and for
the health, comfort, safety, and general welfare of the owners and occupants of the
Property. Written notice of such rules and regulations shall be given to all owners and
occupants and the entire Property shall at all times be maintained subject to such rules
and regulations.

Agreed, but to my knowledge we have nothing like this on the books. Other than the claim of owed money, I don't think the HOA is involved in the sales transaction. In this event, they usually have a lien filed.

See page four of the NC Disclosure form linked below. It is at least an introduction to how the HOA/COA is involved in disclosures for a unit being sold.

https://www.ncrec.gov/Forms/Consumer/rec422.pdf

I know it indicates it is a form that the seller completes. But these days, I believe the custom is for HOAs/COAs to prepare a packet that it sends to the title company, responsive to the items on the form and possibly more items, like providing a copy of the CCRs.

Regardless, the "transfer fee" for your COA is so large that I do wonder whether the COA is making a profit from its transfer fee billings and so is violating the law for non-profit corporations, including tax law. E.g. taxes may be owned on profits.

In other words, is this a profit-making scheme invented by the Board to raise COA income, just as you wrote?

I wish you could find a way to raise this with your Board. I suspect it is a big deal.

(From an earlier thread, LoriM15 lives in a large master association with three condo sub-associations.)

How does this square with the following from FS 718 (meaning the Florida Condo Act):


(i) Transfer fees.—An association may not charge a fee in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws.

Chatter at:

http://www.campbellpropertymanagement.com/blog/2018/12/19/can-condominiums-charge-capital-contribution-fees/

Is the Master subject to FS 718?

FS 720 on the other hand permits all manner of transfer fees.

LoriM15, by any chance do the CCRs or Bylaws authorize this capital contribution fee?

I am only talking about the capital contribution fee for the master which is under FS 720. My computer crashed yesterday and I have not been able to get most of my files restored yet. I will post our CC&Rs as soon as I can on this subject.

Melissa, you often write "we" as if most veteran posters agree with your assertions, claims, and sometimes plain old nonsense. Please write "I" in the future. I, for one, would not stoop to calling any poster an "ankle biter."

Also, please note as you've been informed numerous times, in some states, buyers may examine the governing documents BEFORE they sign off on their purchase. These are provided by the seller via the PM or escrow/title company or real estate attorney.

Now, can you tell us what states make prospective buyers in HOAs drive to the county courthouse and search for the CC&R and Articles? Can you even tell us what Alabama requires, if anything???

Our CC&Rs, btw, are posted on our public website open to anyone who's interested.

You don't have to "order" them. Can look them up online. However, each state and courthouse may be different. The fact still remains they are on file at your local courthouse whether or not the method you decide to get them.

Let me break this down. Your state laws and/or rules MAY state that the owner MUST turn over the CC&R's, by-laws, and Article of Incorporation paperwork. They are to bring them by closing for the buyer. This is the BEST case scenario. However, some states it is NOT required a seller give the buyer the documents. It is viewed as "Buyer's responsibility to be informed". (Lawyer talk). That means that since the CC&R's and Articles of Incorporation are filed PUBLICLY it is on the buyer to gather.

Now do I believe this "logic" makes any kind of sense? Absolutely NOT. It's not a good practice. Hence why states made it a law seller's transfer. It also by making the documents PUBLIC one can't argue you did not know about them hence you can't be forced to follow them. The court would say "They are PUBLIC and ready for view. Your ignorance is not above the law".

People ASSUME that Realtors should provide. IMO they should. A good Realtor IMO would get the HOA documents for their customer. However, legally they are NOT required to do so. Plus not all Realtors are created equal. Can't blame the Realtor for not providing you PUBLIC documents.

Title companies, closing attorneys, banks, or the HOA are not responsible to provide. It's not really in their responsibility scope. They don't have to follow the rules except for the HOA. Which the HOA files the documents PUBLICLY at the record department so they don't have to provide. (The rub). Now I do believe that a good HOA should put this into a package for the membership. Plus bring them to every board meeting. There are no laws or requirements written anywhere the HOA is to do this. It's just a good idea and practice.

Have to also consider homes that were "short sales", Tax sales, or foreclosures. There are no "owner" per se in some of these cases. So how would one get the documents? No owner = no one to provide. Again this is why they are on file PUBLICLY.

Do not put your opinion that I agree to this. I am just stating the FACTS. I am total support of sellers or HOA to provide the documents. This is my OPINION. However, by doing so that can leave the HOA open to a lawsuit if not provided and it goes to court. It doesn't if the documents stay public and online.

We all know Dawn you got a bone in your leg so you can not be responsible for participating. One has to do it for you...

Not slanderous. Plus I am an ex-HOA president because I moved.