Grandfathering Shop

Hi! My subdivision has approximately 150 homes. Approximately 12 of those are on acreage (half acre to just over an acre). There is a home on 1 acre, at the back of the subdivision in a cul-de-sac that has a shop which was built in 2004 as was the house (one of the original homes in here). The HOA President is stating that this shop now has to be behind a fence (after 19 years) We just ammended and combined the CC&R's from 3 sections to 1 for all. A number of board members (VP, and 2 members at large and another board member) say he is grandfathered (which took place years ago) and does not need to be behind a fence. The President says the owner is a pain (never any problems from him - I live next door). His shop is metal, and as stated was built in 2004. The HOA didn't become active until after 2005. Nothing, in 19 years has been said about a fence in front of this shop. The president doesn't like it (shop) because he can't build one (lot doesn't work due to creek) and the fact that people get mad when they are told they can't build a shop like this one (CCR's state wood/brick matching house w/ shingles).

After 19 years, does the owner have to put up a fence in front of shop? Or is it Grandfathered in? We are in Oklahoma. Other things happening with President as well, but this is the main issue right now. But basically he is "selective" in violations, and makes decisions regarding things without discussing with board. He refuses to vote on this issue (fence) and says he will just have violation letter sent. I requested our meeting notes to review and have basically been denied as well.

Sorry so long and hopefully not to confusing!

Are you on the Board? Whether you are or not, unless your Board is extremely unusual, the President has no authority to make decisions. And unless your Bylaws ofr OK statutes say otherwise, he has no authority to send violation letters to Owners. Boards meet and decide by voting what is or is not a violation. And how to "cure" it. Has this issue been on an agenda and discussed at a board meeting? Or are directors simply giving their personal opinions to neighbors, etc., outside of meetings.

Is there anything in your CC&Rs about "grandfathering" in existing structures or anything else? Even if not, there may be other reasons he can keep his shed (statute of limitations; doctrine of laches). But before even getting into those. I'd say your neighbor simply ignores the president's demands. Would the prez really send a demo crew???

Boards often doesn't realize this, but directors may vote members out of office. Your board, for instance can vote that he not be president any longer. tNo reason is needed, just a majority vote. The board can then vote in a different person as president.

Are you on the Board? Whether you are or not, unless your Board is extremely unusual, the President has no authority to make decisions. And unless your Bylaws ofr OK statutes say otherwise, he has no authority to send violation letters to Owners. Boards meet and decide by voting what is or is not a violation. And how to "cure" it. Has this issue been on an agenda and discussed at a board meeting? Or are directors simply giving their personal opinions to neighbors, etc., outside of meetings.

Is there anything in your CC&Rs about "grandfathering" in existing structures or anything else? Even if not, there may be other reasons he can keep his shed (statute of limitations; doctrine of laches). But before even getting into those. I'd say your neighbor simply ignores the president's demands. Would the prez really send a demo crew???

Boards often doesn't realize this, but directors may vote members out of office. Your board, for instance can vote that he not be president any longer. tNo reason is needed, just a majority vote. The board can then vote in a different person as president.

Such chats aren't legal in CA among a quorum of directors.

But, anyway, I'm glad your Board is aware that they do not have to put up with the president's conduct. OR, has the board somehow authorized the prez to act on his own without board approval via its vote? If so, the board will need to vote to rescind or remove that authorization, and then motion and vote to remove him form the office of president. It looks like you probably know you cannot removed him from the board unless your bylaws say so.

How does he, on his own, "have a violation letter sent?" Does that mean he can order a PM or someone else to send such a letter? Whatever the case, it's important to remember that you & the other directors can b held accountable for his rogue actions.

Y'all do know that the president may not engage another attorney. It sounds like you had a retainer agreement with your current one? If your next scheduled meeting isn't very soon, I agree with you that you need to call a special meeting of the Board and vote to remove him.

Don't know if you'll get other replies, there would be some good ones. but your subject line may not interest many solid vets here.

I say:

-- The old covenant is no longer enforceable.

-- I would vote against enforcing the new covenant, requiring a fence for this shop, on grounds of grandfathering, meaning this is the only fair choice (to the owner) to make.

-- Can a letter be sent saying that, upon sale, such and such needs to be done? I am inclined to vote against issuing such a letter.

-- Issue a letter to the owner saying the shop is grandfathered. Remind him his lot is subject to the new covenants. Ignore any negativity or griping from the owner. He appears to be getting a very good deal, due to loose practices by previous boards.

-- To those requesting building a structure like this one owner's, be honest and explain the shop's construction was an oversight by previous boards and is now grandfathered.

-- Remove the president and get someone who understands the importance of not acting "ultra vires." If you do not know what this means, google on it. The current President does not have the legal authority to do what he is doing. If a board majority continues to put up with his behavior, bad on it.