Simple HOA Questions for Mecklenburg County, NC. Perhaps you can assist with some brief answers to help me out. Thanks

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PeterC11 (North Carolina)
Posts: 8

Posted:

Simple HOA Questions for Mecklenburg County, NC. Perhaps you can assist with some brief answers to help me out. Thanks

Sorry to bother you, have some HOA questions that should be very easy for you. Am also going to ask our other HOA for the neighborhood over 170 homes.
Be appreciative of any answers even if they are a few words.

_____
We live in a cul-de-sac of 9 homes that had to split off from the main HOA for various reasons-mainly private road. We did adopt the same Covenants and such.

However, perhaps you can tell me inline if the president is running the HOA in a manner that is abiding by so called normal HOA practices.

1. There is no board. Just one person. Him--Let's call him Bill.
He has check writing authority and no one else. There was another person but that person sold their home and moved, leaving him.
He asked me to be co-signator and I agreed. He said one weekend we would go to the bank and add my name. That never occurred and was 7 years ago.

I think this is not abiding by normal HOA governance...?

2. I believe you must have 3 people on a board even for 9 homes and one person cannot be in control of the money regardless if they are acting honestly.
???

4. He has not held an annual meeting in at least 15 years. And has not divulged on an annual basis the money brought in , special projects and expenditures.

This goes again HOA practices, correct?

5. He recently sent an email to the 8 other homes stating the dues for HOA are owed 4/1. Well prior to this he put letters in peoples newspaper slots. Therefore, this is a departure form the normal manner of notice to pay dues so I do not think this is allowed unless it was common practice or agreed to.

Correct?

6. I asked him via email but I know it should be via postal mail or certified mail to provide that last 3 years of expenditures and bank balance in the next 30 days. He has failed to do so. However I did ask this via email.

I know I must pay dues regardless of him not providing this...

Comments:
I assume we can vote him out if we desire based on a quorum in a called meeting. I have informed him of his deficits, deficiencies, skirting rules and violation of common practices.

I assume we must call board meetings via postal mail or some other agreed method.

Thank you so much for your time

Sincerely
Peter
Pineville, NC
Cardinal Woods subdivision (9 homes in a cul-de-sac in an road considered private).

ThomasP13 (Ohio)
Posts: 87

Posted:

Are you sure that all the legal requirements for creating your own HOA were met? As opposed to the nine of you just saying, "We want to do our own thing, and we'll just copy the CCRs and By-Laws we're under."

Assuming your "new" HOA was legally created, then there is a Board. How many Directors serve on this Board is identified in your By-Laws.

Personally, I think it's better to have co-signers on the checking account, but one signer, as long as that person is a Director and your HOA's Directors & Officers policy covers him stealing from the Association, would be ok for the sake of ease of operations. Do not, under any circumstances, get involved with the HOA's money until you are on the Board and also covered by the D&O policy.

Yes, the situation as you describe it is highly unlikely what it should be, and the way it should be is explained in your By-Laws. Is your situation a case of someone running things because no one else would step up and join him on the Board, or is he a control-freak who wants to be king? Because if it's the latter, your options for change are either convincing him to let go and do things as the By-Laws say they are to be done, or paying a lawyer to get a court to make him.

PeterC11 (North Carolina)
Posts: 8

Posted:

Thank you for your comment. It was more of him wanting to be "King".

But he has let too many things deteriorate with no improvements. SO the situation of "things that used to work" is getting on my nerves. 70% of landscape lights work, bushes now dead and solution is to cover that area with pine needles, broken sprinkler system, untrimmed trees, and the list goes on. And for the last 7 years I alone have taken it upon myself to keep the areas clean. Perhaps no one really cares.

He refuses to raise dues so the expenses each year are using up the reserves. And sadly after 21 years with 9 homes there is perhaps $2k in the bank. I told him 8 times to raise it. He asked if I wanted to take it over and I said I would, BUT I would raise the HOA dues so we have enough money to correct issues and build reserves. He then reneged.

*The question I have though is he able to tell us to pay dues via email when this has never been the method before?
I told him he cannot ask for dues to be paid via email and needs to use the same method as prior as consent was never given to accept dues via email--I believe I read this somewhere. And I believe there is a policy on this.

Of course I will pay the dues. I want to ensure some process is followed and may force his hand by calling a meeting and just voting him out.

Enough is enough when you have $3900 in expenditures in 2021 and again for the 10th year straight you ask for $400 x 9 houses = $3600. You run a deficit.

I told him via email of my disdain for his management, that he should step down due to being fiscally irresponsible, not holding ANY meetings, not having a board, not informing people of expenditures, not informing people of anything...

Sure it is only 9 houses but there have been road issues, 7 out of 9 homes had water line breaks costing up to 10k each to fix, etc...

Thank you so much
Peter

CathyA3 (Ohio)
Posts: 6,299

Posted:

This is an unusual situation. I hope a lawyer was involved in the split and in the drafting of your covenants and bylaws. It's a bit odd to just adopt the CC&Rs of the full HOA because they often refer to the total number of units, amenities, and other physical structures in the HOA, which would not apply to your new HOA. This could cause legal issues. (For example, are your CC&Rs recorded? Is your community a corporation and have you maintained that status? If you have let your corporate status lapse, you have much bigger problems.)

As for the number on the board, the bylaws should specify. You want more than one director and you want an odd number to break tie votes - but in an HOA of 9 homes, it can be hard to find enough volunteers. The reason you want more than one is that you don't want the person who signs contracts (the president) to be the same person who signs checks (treasurer) - it raises the risk of embezzlement and auditors have conniptions (as may your HOA insurance carrier). The HOA does have insurance, yes?

In any HOA, the homeowners control their own destiny. If they don't like what the current board is doing, they replace them. It sounds like you have a bunch of apathetic neighbors who are willing to put up with the status quo as long as someone else does the work. This is not unusual. In the current board member's defense, it is a lot of work and if nobody else can be bothered to do their fair share, I'm not surprised that he takes shortcuts or just doesn't get to everything. And to be blunt, the large majority of homeowners haven't the foggiest idea about how HOAs work - if they're elected, they learn on the job and usually by making mistakes. Or they makes mistakes and don't learn.

If I were in your place, my first task would be to verify that the community is still a corporation and that you're carrying insurance (liability, fidelity/employee dishonest, directors & officers, and maybe workers comp). If these things are not true, then every homeowner in the community is jointly *personally* liable if somebody gets hurt and sues the HOA. This would be really bad, and with only 9 homes you'd potentially be one uninsured injury away from personal bankruptcy. Yes, I'm trying to scare you - you need to check this first and get it straightened out if necessary before you worry about your board.

PeterC11 (North Carolina)
Posts: 8

Posted:

I agree, thank you very much. I doubt he will give it up, we will have to vote him out. I did ask the company that runs the big HOA their thoughts as well as the President of the rest of the subdivision HOA for her perspective.
And of course there is really no money for a lawyer so we would have to draft any and all documents or change the CC&R's to reflect the new structure like you so astutely said.

I believe it is an LLC he has.

Thank you!!!

Peter

PeterC11 (North Carolina)
Posts: 8

Posted:

And to add to this. It is considered a private road (county did not build it up to code but let houses be built-what a surprise--not). And each of the 9 homes own a plat that includes this road. I ,at least have an umbrella policy. And sure there are easements for the road. Not sure about the middle section with grass and trees.

To make this a corporation would be interesting since each of the 9 has ownership of the cul-de-sac.

After I bought the house I found they included the dimensions of my lot size with the cul-de-sac portion. I then obtained a lawyer since they overcharged me on the price of the house since they said it was on a 1/3 of an acre and it was .25. So I had to go against a big NYSE home builder and they settled in my favor.

Thanks again
Peter

AugustinD
Posts: 3,698

Posted:

Ditto the first couple sentences or so of ThomasP13's and CathyA3's posts.

Peter, it is a huge deal for a "secession" of a part of a HOA to occur and be lawful. In my experience, such a secession rarely if ever happens. I think you have a lot more homework to do. Many of your questions probably have false premises and so cannot be answered rationally by anyone.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By PeterC11 on 03/12/2022 12:27 PM

Pineville, NC
Cardinal Woods subdivision (9 homes in a cul-de-sac in an road considered private).

I think I see this subdivision at
https://nextdoor.com/neighborhood/cardinalwoodsnc--pineville--nc/

The nine home cul-de-sac is across a river or creek relative to the other homes and is shaded differently than the other roads in the HOA.

I searched the NC Secretary of State corporation site to see if there were a "Cardinal Woods" corporation that looked like what the OP describes.

Peter, corporations by law must have Articles of Incorporation on file with the state. They must also have Bylaws. The Secretary of State may have a copy of the Bylaws. Your County Clerk might also have a copy of the Bylaws. Until you locate these documents and determine what they say, your "HOA" is little more than a club that President Spanky, Vice President Alfalfa et al. founded. No owner should be paying dues or anything to the President until it's determined whether your little 9-home subdivision is a corporation.

Peter, if the NC Secretary of State does not list either (1) this (supposed) 9-home HOA as a corporation; or (2) another corporation that includes these nine homes under its umbrella, then the only law owners must abide by are the covenants that restrict use.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AugustinD on 03/12/2022 2:41 PM
Ditto the first couple sentences or so of ThomasP13's and CathyA3's posts.

Peter, it is a huge deal for a "secession" of a part of a HOA to occur and be lawful. In my experience, such a secession rarely if ever happens. I think you have a lot more homework to do. Many of your questions probably have false premises and so cannot be answered rationally by anyone.

Reiterating:

* You *must* have a lawyer involved - you can't afford not to. First, CC&Rs are written in legalese for a reason. A lawyer will make sure that yours comply with all relevant state law, among other things - failing to do this will set your community up for future litigation, which can get a lot more expensive than simply paying the lawyer to draft your governing documents and seeing to it that the homeowner vote is carried out properly. Second, in a number of states it's illegal for non-lawyers to do legal work. This is not a DIY job.

* As I'd mentioned earlier, if you're community is not a corporation, then you can't obtain HOA insurance. This will make all homeowners personally liable if the HOA is sued. In addition, any "board members" will not be covered by directors and officers insurance, again making them personally liable if they should be sued for actions taken as directors. Nobody should ever put their personal assets at risk in order to serve on an HOA board - the fact that you've got one person doing this is proof that he doesn't have a clue.

* As far as collecting assessments goes, if you're not a legally organized HOA, then you have zero authority to assess anybody and attempting to do so fits the legal definition of fraud.

I *strongly* encourage you to consult with an attorney who deals with HOA law in order to educate yourselves before you get yourselves into a world of hurt.

PeterC11 (North Carolina)
Posts: 8

Posted:

Thank you all!!! Very helpful
I appreciate it all and will pass this on.

Peter

AdamL1 (UnitedStates)
Posts: 559

Posted:

genuinely curious HOW your street separated from the main HOA.

If you basically copied the governing documents from the Main HOA, then there should be language for quantity of directors, elections, etc. Follow those.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 03/13/2022 8:52 AM
genuinely curious HOW your street separated from the main HOA.

Me too.

That map I linked combined with what the OP related are sure interesting.

Could this have been a bona fide secession (about which I recall AdamL1 asking recently)?

I would be surprised if it were. Still.

Ditto again all of CathyA3's latest cautions. I think they're no small potatoes.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Hi Peter,

This is interesting to me as I preside over a master association that features sub-communities that possess their own small boards, small property counts and their own CC&Rs. I've pulled your community's CC&Rs from the Mecklenburg County Register of Deeds website to satisfy my own curiousity.

- I see where the developer filed to add land to your HOA. I presume these are Phases of Construction as the company completed segments of your neighborhood.

- Your CC&Rs have clear rules for annexing new land.

- I see no provisions for de-annexing in your CC&Rs

- I see a filing where a section of 9 homes was to be charged, it seems, a different dues rate than others in the community

- I see no filing where Cardinal Woods de-annexed any properties (it only added phases)

So, if your 9-property mini-HOA isn't filed in Mecklenburg County, I would question its legitimacy and any board decision, no matter how many years previous, that removed their obligation to serve your private road. This seems like a master association trying to avoid maintenance of limited-enjoyment amenity, which is the private street. However, I can see where 9 properties seemingly face a different dues rate.

I completely stand to be corrected on this but find it interesting. Please learn whether your mini-HOA is actually legitimate. If not, get back under your larger board of directors.

https://meckrod.manatron.com/RealEstate/SearchEntry.aspx - Type "Cardinal Woods" into the Party Name text box and read

PeterC11 (North Carolina)
Posts: 8

Posted:

Thanks folks. You "guys" are so resourceful in looking things up
Well I was an original home owner and still am in this neighborhood
The others 170 or so homes are run by an HOA management firm and have different dues. Been this way since I think 2002 or so.

I believe before they had an HOA they had some board of people (homeowners) and voted us out as indeed they did not want to have to take care of a private road and the pitfalls that could occur as a result. Us 9 homeowners at the time were shocked it was a private road that the county would not maintain and we could not bring it up to whatever standards they needed since homes were still built on what the county deemed a road "not meeting some standards". Silly but how business is. They built any

We had a consultation with a large RE law firm who said it is a 50 50 chance that you will be able to even win a case against NVR for building a road not up to standards . They are a multi B dollar firm and would just outspend us obviously and tie things up forever.

We were asked or told to leave the other HOA effect. I think the board of other homes in the community and I am fuzzy on why we said yes.

We then signed a document stating we were separating from them and adopted their CCR's and bylaws and such and our dues would be different and we would form our own HOA or something to that effect.

Do I have a copy of such, nope, doubt it. Does anyone, probably not.
There are only 2 original home owners of the 9 up here, I am one, and the other is the ineffective president.

So you bring up a good point about the de-annexation which is new to me of course.

We have had a lot of leaks in the road, most 12 feet down--7 out of 9 homes. But not my home nor another as we were smart enough to put in Pressure Reducing Valves at the meters 200 feet from the house to lower pressure from 145psi to 75psi. Of course the meters are at a place the 200 feet away where the city will service that area.

We also have a deteriorating road in front of my house that is wavy and gatoring due to the leaks and erosion. Sure it is on my plat of land but it is an easement and I estimate would take at least 30k to correct. I am not going to fix this out of my own pocket. The HOA will do nothing and has $2500 at most in the bank after 20 years. I will move in about 4 years when my wife retires. If we found something sooner in this crazy market we would move now before the road gets worse.
Our neighbor just sold their home, 100 viewings in 4 days and tons off offers as is the case these days. Best offer was quite a bit over asking, no surprise in this market.

So that is about all I know sorry to say.

It is nice up here on this hill but be nice if it were better taken care of and we did not have the potential leak issue for us and the ever worsening road problem.

Thank you all very much as usual
You remind me of myself when I know something about a topic and want to help others.

Peter

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Peter

My initial blush was you did not have a legally formed HOA but you have shown that you do have. It also seems that you all have been happy/negligent and now the chickens have come home to roost. My advice is get a hold of the Bylaws and get busy setting up the HOA (BOD/Officers) as the Bylaws dictate. Once in charge a dues increase is warranted.

If to much work, then sell now.

PeterC11 (North Carolina)
Posts: 8

Posted:

Point taken.
Thanks again

AugustinD
Posts: 3,698

Posted:

From KellyM3's county site link, just some observations from someone (me) not at all well-informed on any of this but still curious.

Document 1999009316 dated 1999 shows the 1999 map of Cardinal Woods. The OP's little nine-home cul-de-sac does not appear to be in the boundaries of the development back then. I attach a screenshot of part of the map. But now more investigation of KellyM3's comment on a certain 9-home section being charged a different due date needs to be considered. Got a document number, KellyM3? The county site is hard for me to navigate efficiently. Plus I am not a licensed yada land use person.

Thanks to KellyM3 for pointing out that the proper legal term for opting out of a HOA is "de-annexation."

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AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 03/13/2022 11:18 AM
being charged a different due date

Post-o. Change "due date" to "dues rate".

AugustinD
Posts: 3,698

Posted:

The two attached documents show the developer annexed the OP's nine lots into the HOA in 2000.
At the county site, these are:

2000133808 , the annexation and supplemental declaration yada

2000133654 , showing a plat of Phase 1 Map 4 (the OP's nine lots)

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AugustinD
Posts: 3,698

Posted:

The attached document shows the assessment to which I think KellyM3 was referring for the OP's nine lots

2001076284 , assessment for the OP's nine lots

On the subject of de-annexation:

On de-annexation in general, what I am seeing is that typically a Declaration has a section that states how de-annexation occurs. For example, here's such a section from an Idaho Declaration:

De-annexation. Grantor may delete all or a portion of the Property, including
previously annexed Phases, from the Property and from coverage of these Declarations and the
jurisdiction of the Association so long as Grantor is the owner of all such Phases and provided
that a Supplemental Declaration of Deletion of Property is recorded in the Office of the Ada County Recorder in the same manner as a Supplemental Declaration of annexation. Members
other than Grantor, as described above, shall not be entitled to de-annex all or any portion of a
Phase except on the favorable vote of eighty percent (80%) of all members of the Association
and written approval of Grantor (if Grantor owns any portion of the Property).

By my reading of the OP's CCRs, there is no such de-annexation provision.

The nextdoor.com web site I linked above and the OP's posts suggests there is more to this.

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PeterC11 (North Carolina)
Posts: 8

Posted:

Obviously they should have de-annexed our lots as someone stated but never did. But i doubt we have any rights from other hoa since we signed docs indicating separation.

You folks have educated an old guy very much. And your thoughtfulness in looking this stuff up is outstanding. I sincerely appreciate you all.
I do have 2 questions.

1.As an LLC i am not sure this guy ever filed a tax return for the $400 we give him each year and expenditures. I assume itvis required.

2. Since all 9 owners own part of the road and grass area, would we be eligible for insurance for this area?
At least i have an umbrella policy with a decent dollar amount as part of my homeowners insurance..but.. not sure if it covers entire piece of "my part of the cul-de-sac pie" or just where my house sits. Am afraid to ask insurer.

Thanks

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By PeterC11 on 03/13/2022 5:12 PM
Obviously they should have de-annexed our lots as someone stated but never did. But i doubt we have any rights from other hoa since we signed docs indicating separation.

One reason I think you may have lost rights to be included under the umbrella of the larger HOA is because for many years, your little 9-home group has been conducting itself as if all the covenants and bylaws pertaining to the procedures of the larger HOA have been abandoned. It's a "course of conduct" that I suspect under the law argues that a de facto annexation has occurred, even if de-annexation were prohibited by the main HOA's Declaration. This may be just one reason why the one law firm opined that the chances of your 9-home group forcing the larger HOA to cooperate and support the road were a mere 50-50.

From all I can tell it's going to take a massive education campaign of the owners to raise the money to consult an attorney. But if you nine lot owners do not do it, then I think you are taking a lot of risk. How to proceed to get rid of the guy you think is incompetent is the question. You gotta see if there are bylaws anywhere, starting with the Secretary of State site, and e

Can you even tell from whatever covenants you think apply who has responsibility for the water lines? It's pretty common for individual lot owners to have the maintenance responsibility for the water line from the house to the city supply valve.

Yada yada. I doubt this group can do much for you at this point. Updates are welcome.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

When you search Cardinal Woods on that Mecklenburg Register of Deeds site, look on page 2, #23 & 24 documents.\

Instrument Number: 2001076284

Attached is the file I found, but it appears to be the same file linked above. It shows a dues rate differential and a 3-times multiplier on dues....though I have zero experience with such riders and may be misinterpreting it.

That said, I do not see any provision for the HOA or the nine-house sub-community to simply opt-out if the CC&Rs are followed but I DO see appearance of the developer incorporating the 9-house street into the greater HOA.

The issue here is not the street's construction not being up to code as a private street. Developers and government officials can be in cahoots on large projects...an issue that likely dates to Ancient Rome and Egypt in all honesty.

It's the legitimacy of this sub-HOA "board" of one person now that maintenance is coming due on a very costly street paving job. If the larger HOA is legally bound to manage that 9-home stretch, so be it. There's big money at play by having 170 homes fund a street paving over 9 houses.

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PatJ1 (North Carolina)
Posts: 568

Posted:

PeterC11 -

I am near to you. Well versed in HOA's and navigating real estate records and such.

Many here have brought up some very interesting concerns.

I find your situation very intriguing. Please email me at [email protected].

AugustinD
Posts: 3,698

Posted:

Quote:

I remain interested in any updates either the OP, PatJ1, or KellyM3 may post.

From AdamL1's thread on seceding/de-annexing (linked at the bottom of this post), the signs are that the alleged de-annexation must be done pursuant to the CCRs and/or state statute.

I think the main HOA here is subject to the NC HOA statute 47F. The statute has nothing in it giving a HOA authority to de-annex beyond what might be in the CCRs. Per docs from the site KellyM3 linked, the CCRs are silent on the subject of de-annexing. The remaining path to de-annexation appears to me to be through amendment of the CCRs. But amending the CCRs in such a manner is fraught with peril. By my reading, the courts do not like amendments that reflect "the tyranny of the majority." For example, if the required supermajority amended the CCRs to either exclude the OP's aforementioned nine lots or de-annex these nine lots, and all because the supermajority did not want to pay for some special infrastructure needs involving common area in and around the nine lots, then I think this would be a tyranny of the majority to which a court might very well say "No. Not allowed. All owners in this HOA knew in advance they had to support the needs of all the common area in the HOA. A supermajority cannot just up and bail, via an amendment to the CCRs, on a small minority that has developed infrastructure needs. That's not what the contract says."

I am not sure what the OP's goals are at this point. But if the OP wants to fight the de-annexation, then I think this situation might deserve the opinion of a second attorney. I wouldn't be shy about saying you read a certain Colorado appeals court decision and feel like the statute and the CCRs are on the side of the nine lots, as far as arguing the nine lots should not have been de-annexed (and in fact as a matter of law, may not actually be de-annexed). See the link for the Colorado decision at AdamL1's threat at:

https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/320325/view/topic/Default.aspx

Fighting the de-annexation might be appropriate for many legal and liability reasons, as CathyA3 has pointed out.

AugustinD
Posts: 3,698

Posted:

Quote:

I so want to see these "docs indicating separation." Even if all nine lot owners and all owners in the surrounding HOA signed these docs, if the procedure for amending was not followed, then I opine, "Foul. The original contract (meaning the original CCRs) is still in place. The CCRs are operative right now. The little handshake agreement that appears to have taken place, with a buncha signatures, does not nullify the bigger contract (the CCRs). Meaning IMO that all are stuck on the same good ship Cardinal Woods, as one big happy (or not) family of lot and home owners."

As KellyM3 identified, and from my check as well, I see nothing so far that undoes the 2000 annexing of the nine lots, including the Supplemental Declaration filing that subjects the nine lots to the exact same CCRs as the many other lots in the HOA. It's all one big nonprofit corporate family of lot-owning members.

Why should the many residents in the rest of the HOA (outside of the nine lots) care? Because they'd be as vulnerable to a liability claim on the land that was allegedly (but not actually) de-annexed as the owners of the nine lots.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Per this thread, the only 50/50 battle in court involves holding the county liable for building a sub-par city street. We have seemingly raised an ancillary point not related to Peter's concern that the street is in bad shape.

I can't see evidence of a deannexation and there's certainly no HOA board vote, as in a policy vote, that would allow deannexation. This isn't a pool smoking ban we're talking about.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By KellyM3 on 03/16/2022 4:35 AM
This isn't a pool smoking ban we're talking about.

I say: Darn straight.

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