Owner A places private items in common area, Owner B discards a hazardous item, Board wants to reimburse Owner A

Started by LizD3 • 38 replies • 352 views

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LizD3 (California)
Posts: 200

Posted:

Owner A placed 10 privately-owned items in a common area with no permission from the Board. Owner B asked Owner A to remove the items, citing CC&Rs. Owner A refused.

The Board refused to ask Owner A to remove the items. 1 of the items was a hazard, so Owner B removed it which caused the item to be destroyed. The item was thrown away (it was of minimal value).

Because some of the Board members are best friends with Owner A, the Board wants to reimburse Owner A (not due to any legal or related concerns).

* I believe it is incorrect for the Board to use Association money to reimburse an owner who placed private items in a common area in violation of our CC&Rs
* And I believe instead of reimbursing, the Board must compel Owner A to remove the private items that were placed on the common area

Your thoughts, please?

CathyA3 (Ohio)
Posts: 6,299

Posted:

If Owner A is not on the board, I'd say that Owner A was out of line to remove the item unless it constituted a "clear and present danger" and should reimburse the owner if there's any reimbursing to be done. However...

People put personal items on the common elements at their own risk, and damage should be expected a a possible outcome. So I don't think reimbursement is appropriate at all unless the association's insurance would cover this.

Finally, I'm glad I don't live in your community, there is WAY too much unnecessary drama. However, y'all must enjoy it because otherwise you'd stop.

ElleN (Idaho)
Posts: 4,420

Posted:

I agree with CathyA3.

In addition, when Owner B is unhappy with how either a board is responding (or not responding); Owner A is responding (or not responding); or both, the law says Owner B is supposed to take certain steps, right up to and including filing lawsuits.

In my opinion, all parties' (A's, B's, and the Board's) hands here are quite "unclean."

LizD3 (California)
Posts: 200

Posted:

My questions are:
1. Should the Board reimburse Owner A for the privately owned item? I think this is a misuse of Association money.
2. Should the Board insist Owner A remove the private property from the common area? I think they should.

(Cathy, I agree there is too much drama. That’s why I’m on this site; to figure out how to stop it. So I hope I'm wrong, but it feels like quite the uncharitable leap to assume I enjoy it.)

TerriS6 (California)
Posts: 3,284

Posted:

Your governing documents say how funds can be used. I would wonder under what category they would say it's OK to pay? Then what account would it come out of and what are the criteria for using that money.

TerriS6 (California)
Posts: 3,284

Posted:

I would ask too if placing the items in common area would constitute exclusive use of a common area? If so, there are laws about that.
Our governing documents say that nothing can be removed from the common areas. Maybe yours say something about it.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By LizD3 on 07/16/2023 10:15 AM
My questions are:
1. Should the Board reimburse Owner A for the privately owned item?

Is this four-unit COA, is Owner B on the board? If so, and if I were on this board, I might vote for the HOA to reimburse this. I might not. It's not too hard to argue either position, legally.

Quote:

Posted By LizD3 on 07/16/2023 10:15 AM
2. Should the Board insist Owner A remove the private property from the common area?

Legally, assuming the private property has not been there long and serves no useful function to the HOA per se, yes, the HOA should enforce the covenants pertaining to use of the common area. Normally this means no private property is allowed.

Reality:
At most, this condo association has four owners. It has either three or four directors. This board can do pretty much what it wants until B takes the HOA to court and wins. And when B takes this HOA to court, IMO B's own failure to comply with the covenants, by messing with property on the common area, is likely to come up. Ideally Owner B's hands are squeaky clean. They are not.

MarkB28 (New York)
Posts: 40

Posted:

Small claims court filing in my state is only $35. If the cost of the items that was lost is more than then maybe it's worth to use Small Claims to let a JUDGE decide.

TerriS6 (California)
Posts: 3,284

Posted:

Another thought. Board members are not permitted to discuss or take action on items of business outside a meeting.
If this situation is an "item of business," i.e. something over which the board has authority, then how to define it?
And if it is an item of business, they have violated the open meeting act.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Remember Liz is in a 4 unit condo and I believe the other 3 are the BOD. Liz looks for issues as she is the odd person out.

ElleN (Idaho)
Posts: 4,420

Posted:

By my reading, whether LizD3 is on the board of this four-unit condo or not has never been confirmed. If the board has four directors, and given that this is a four-unit condo association, then I would not be surprised at all.

Whether this board has decided to reimburse owner A, and did so in an open meeting, or possibly in an emergency action (threat of litigation?), remains unknown.

MarkB28 (New York)
Posts: 40

Posted:

"Board members are not permitted to discuss...outside a meeting."??????

That doesn't make any sense. Where do you find that?

TerriS6 (California)
Posts: 3,284

Posted:

I'm sorry, it's no action outside a meeting Civil Code 4910a and no discussion if not on agenda 4930.

MarkB28 (New York)
Posts: 40

Posted:

Quote:

Posted By TerriS6 on 07/16/2023 10:52 AM
I'm sorry, it's no action outside a meeting Civil Code 4910a and no discussion if not on agenda 4930.

Thank you for clarifying.

Also, "no discussion if not on agenda."?? That's unnecessarily restrictive. It's to prevent any surprises, however, to at least discuss something so that it can be put on next month's agenda seems completely reasonable.

TerriS6 (California)
Posts: 3,284

Posted:

Of course, a quorum of directors could not discuss an item of business outside a meeting since that would be a secret unlawful meeting.

MarkB28 (New York)
Posts: 40

Posted:

Quote:

Posted By TerriS6 on 07/16/2023 11:02 AM
Of course, a quorum of directors could not discuss an item of business outside a meeting since that would be a secret unlawful meeting.

So one board member calling another Board member ahead of time to discuss an upcoming vote on the agenda is secret and unlawful??

I believe a secret unlawful meeting is where the Board of Directors conducts a meeting but suppresses the access to it.

MarkB28 (New York)
Posts: 40

Posted:

What about "a quorum" of Board Members who wish to simply make certain of an agenda before actually starting and conducting a meeting? For example, 3 of 4 Board Members informally meet before a Annual Meeting to make sure things run smoothly.

TerriS6 (California)
Posts: 3,284

Posted:

A series of phone calls or emails to discuss an upcoming vote that eventually included a quorum would be illegal in CA.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MarkB28 on 07/16/2023 11:11 AM
What about "a quorum" of Board Members who wish to simply make certain of an agenda before actually starting and conducting a meeting? For example, 3 of 4 Board Members informally meet before a Annual Meeting to make sure things run smoothly.

In CA, that would have to be an open meeting with notice, agenda, and member attendance and comment period.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MarkB28 on 07/16/2023 10:57 AM

Posted By TerriS6 on 07/16/2023 10:52 AM
I'm sorry, it's no action outside a meeting Civil Code 4910a and no discussion if not on agenda 4930.

Also, "no discussion if not on agenda."?? That's unnecessarily restrictive.

It's California statutes. New York is very different. California legislatures have emphasized transparency above all else. Not so with New York.

From my reading, thinking New York co-op/condo practices are going to be similar to California's is a mistake.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/16/2023 10:52 AM
I'm sorry, it's no action outside a meeting Civil Code 4910a.

To elaborate, 4910(b) permits "emergency" actions by email when all directors consent. More at https://www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings

Of course, one person's emergency will be another person's non-emergency.

I think this is relevant. If this HOA Board is making decisions by email per 4910(b), justifying doing so because it's an "emergency," then short of going to court, this will be hard to fight.

TerriS6 (California)
Posts: 3,284

Posted:

Liz's situation was not an emergency.

TerriS6 (California)
Posts: 3,284

Posted:

This says any portion of common area.
DAVIS-STIRLING ACT
CIVIL CODE SECTION 4600. GRANT OF EXCLUSIVE USE OF COMMON AREA.
(a) Unless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member.

LizD3 (California)
Posts: 200

Posted:

Terri, every time you post, I learn something helpful. Thank you.

TerriS6 (California)
Posts: 3,284

Posted:

I'm glad 5 years of suffering turned up something good. 😊

KerryL1 (California)
Posts: 14,550

Posted:

Terri is correct MarkB, a QUROUM of the Board may not discuss upcoming assoc. biz except at an open meeting of the Board (with certain caveats). I like it, other CA directors hate it, but it is so.

The CA HOA attorneys at Davis-stirling.com discuss and define "emergency." Pretty much as commonly used--unexpected and threatening to life or property,

Our Rules & Reg forbid placing or storing any personal items in the common areas

ElleN (Idaho)
Posts: 4,420

Posted:

Per California statutes and the law firm at the D-S site: An emergency situation exists "if there are circumstances that could not have been reasonably foreseen by the board, that require immediate attention and possible action by the board, and that, of necessity, make it impracticable to provide notice." See California Civil Code 4923 and 4930."

I think this gives lots of leeway for a board to pull shenanigans. Fighting this legally seems like it would be hard and drawn out.

The part of California Civil Code 4600 to which Terri referred is good to know in general, AFAIC. On the other hand, bringing 4600 to the attention of the other three owners would likely instantly result in a vote to grant this exclusive use. Wouldn't the latter be the very worst outcome here? I am not sure I would be eager to tell the other owners they have such a powerful weapon in Civ Code 4600.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 07/16/2023 1:59 PM
On the other hand, bringing 4600 to the attention of the other three owners would likely instantly result in a vote to grant this exclusive use.

I am going to amend the above to urge LizD3 to see what her COA's governing documents say. With such a tiny HOA, I can see the covenants maybe saying a 100% vote is required to grant exclusive use of xyz to any one owner. Whence per 4600, the covenants would prevail. The covenant then becomes a weapon she can try to deploy.

TerriS6 (California)
Posts: 3,284

Posted:

Owners would not have the votes. Minimum 67% is 2.68 votes. Fractional votes not allowed.
An emergency is a flash flood. Emergency meetings are rare.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By TerriS6 on 07/16/2023 11:13 AM
A series of phone calls or emails to discuss an upcoming vote that eventually included a quorum would be illegal in CA.

Would be legal in SC.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By LizD3 on 07/16/2023 8:58 AM
Owner A placed 10 privately-owned items in a common area with no permission from the Board. Owner B asked Owner A to remove the items, citing CC&Rs. Owner A refused.

The Board refused to ask Owner A to remove the items. 1 of the items was a hazard, so Owner B removed it which caused the item to be destroyed. The item was thrown away (it was of minimal value).

Because some of the Board members are best friends with Owner A, the Board wants to reimburse Owner A (not due to any legal or related concerns).

* I believe it is incorrect for the Board to use Association money to reimburse an owner who placed private items in a common area in violation of our CC&Rs
* And I believe instead of reimbursing, the Board must compel Owner A to remove the private items that were placed on the common area

Your thoughts, please?

Owner B voluntarily removed items from the common area, which constitutes zero cost in dollars to the HOA.

Owner A voluntarily dumped waste on common areas, creating a violation that an HOA member (Owner B) "cured."

Owner A's problem is with Owner B. It's not HOA business. The HOA does not have an issue to address.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KellyM3 on 07/16/2023 2:32 PM

Posted By LizD3 on 07/16/2023 8:58 AM
Owner A placed 10 privately-owned items in a common area with no permission from the Board. . . . 1 of the items was a hazard, so Owner B removed it which caused the item to be destroyed.

Owner A's problem is with Owner B. It's not HOA business. The HOA does not have an issue to address.

The HOA should have an issue with the other 9 remaining personal items being stored in the common area of course.

Regardless of friendship (which is always the hard part when serving on a board) the Board should enforce the governing documents, especially since it was brought to their attention.

LizD3 (California)
Posts: 200

Posted:

Quote:

Posted By TimB4 on 07/16/2023 2:59 PM

Posted By KellyM3 on 07/16/2023 2:32 PM

Owner A's problem is with Owner B. It's not HOA business. The HOA does not have an issue to address.

Yes, that is how I see it, too (that this is between Owner A and B and the HOA has no right to use HOA funds for Owner A). However, I am pretty sure the Board will vote at the next meeting to reimburse Owner A AND they will NOT require the remaining items to be removed (the Board was informed about the private items on common property months ago and refused to do anything). So, if this happens, what can I do?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 07/16/2023 2:15 PM
Owners would not have the votes. Minimum 67% is 2.68 votes. Fractional votes not allowed.

The association has four owners. If the covenants are silent on this issue; each unit has one vote; and the three neighbors vote as described above (including checking all of 4600); then per 4600, Liz loses.

LetA (Nevada)
Posts: 2,679

Posted:

The Board needs to step up and do their job. Send letter to owner A a cease and desist order. Send a letter to owner B not to remove
items from common areas. If owner A wants to sue owner B go for it. I foresee a judge tossing this.

ElleN (Idaho)
Posts: 4,420

Posted:

LizD3, what percentage of owners is required to amend the declaration? This will be in the declaration, probably towards the end.

TerriS6 (California)
Posts: 3,284

Posted:

Your ownership entitles you to enforce the CC&Rs against the association. For allowing member to use common area and for misusing funds, the court can order reimbursement
Be sure you don't consider self-help.
Agree with TimB4.
They are really irritating.

TerriS6 (California)
Posts: 3,284

Posted:

Whoops, duh.

LizD3 (California)
Posts: 200

Posted:

And there you have it, folks. I’m now going to do what I should have done long, long, long ago but didn’t want to because who wants to lawyer up against the neighbors? and ask if anyone has any tips on how to get a good lawyer. So please follow me to my new, fun-filled topic with the very original title of, you guessed it, “Any Tips for Finding a Good Lawyer?”

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