Precedent vs Covenants

In my experience the only time "precedent" counts is when a covenant is not enforced. If a covenant is not enforced for years and certain other requirements are met, sometimes a court will rule the covenant "abandoned" and not enforceable.

Here AFAIC that's not really what is happening. Instead over the years the Declaration has been unlawfully amended to add a service. Plus owners are being billed for something the Declaration says they should not be billed.

I wonder what the HOA insurer would say about this.

From general reading, I do not like the board's chances in court.

In my experience, you are stuck with choosing from only bad options. The least worst option here is to campaign to replace the board with people who feel as you do. The worst option is to lawyer up and start making demands (through your attorney). This will cost you money. You are not guaranteed to get your money back.

Thank you for your reply. We just had our election. We had 6 new nominees plus all current members nominated themselves; and still, somehow, the current Board came up with some proxies and all won re election. We are unsure of the legitimacy since we vote by secret ballot and votes were counted by two of the current Board, who were also nominees, which we did not think was the right way to count the votes. So, getting the votes to recall the current Board would be tough. One of us wants to go to court, and force the Board to do the right thing. We feel the Board should contract for the lawn care of the Common Areas, and if private homeowners want lawn service they should pay the company separately for that service. This would allow for an across the board reduction in dues, also. When that was suggested to the current Board, they balked. I agree that the HOA insuror may have some insight.

You could get the grounds maintenance contract to find out how much is being charged for private property maintenance, then pay that amount separately "under protest." A basic property right is the right to exclude others. You could write a letter to your association, ask to have your dues adjusted based on the contract or the local average cost, instruct to opt out of lawn service and give them a time by which to comply. If they don't, ask to meet for dispute resolution and/or take them to small claims court to get a refund and an injunction if you don't get the results you need.

The Common Areas are deeded to the HOA and include only 4 parcels. The majority of the land is deeded to the individual owners. The division between Common Areas and private property is very well defined. Yes, we felt there was something sketchy about the vote tally, as well.

Thank you for your input. The lawn service is paid over $17,000 per year. With the Common Areas being only 4 small areas, one of which is the pool, the majority of the cost is for the privately owned lots. This Board has shown themselves very difficult to work with.

BeverlyW4, I want to cover as many bases as possible. By any chance does your declaration or Articles of Incorporation say your HOA is organized as a condominium, subject to the Tennessee Condominium Act?

(As you may be aware, Tennessee does not have a HOA statute for subdivisions having stand-alone, single family homes.)

Wasn’t the dues amount disclosed to you before you bought the property ?

If your association is a corporation, it will be subject to your state's corporations code regarding elections and proxies. Excuse me if that was posted already.

Okay.

I do not know what this means. Nor have I heard of such a "basic property right." If you have a citation for your point, consider posting it. I can say this: If the CC&Rs require the assessment be based on the cost of caring for the common areas, and the board is basing the assessment on the cost of caring for the common areas and privately owned lots, then an owner has a viable claim in court to enforce the covenants as written.

I would ask to have the dues adjusted base on the covenants, period.

Otherwise, I do not rule out trying what TerriS6 describes in small claims court. I would want to study up on whether Tennessee small claims court has jurisdiction here. It's possible enforcing covenants is outside Tn small claims courts' purview.

Appreciate your input. Our HOA is a non profit LLC. Again, our Covenants specify a "two year term limit." But, goes no further except to say that the current Board member would complete the two year term until his successor is in place. It says nothing about re election or succeeding one's self. We tried to have a governance committee work on revisions to our governing documents, but the troublesome Board member stopped them working on it when the attorney quit over learning the guy was misrepresenting his advice. There are so many things they do incorrectly and fail to do...providing owners with itemized statements of their accounts, providing owners with end of year statements (P&L, Balance Sheets, etc.). Their way is to sit at the Annual meeting and have the Treasurer read the expense totals in each category for the year. No statements from those who have been paid, no bank statements, etc. This year they had worked up three proposed budgets, with very inflated costs for each category, in an attempt to raise the dues above the permitted annual increase. Even their lowest budget, which had several fake line items was voted down. We have learned the President lied about the true costs of the "lawn service," which prompted the entire question I originally posted about in this forum. Yes, apathy, and fear of "upsetting my neighbors if I speak out" on the part of many homeowners, has led to this.

The law says: re-election is not prohibited. Hence it is allowed. One person can serve multiple, successive terms.

Many folks are coming here complaining about the increase in their assessments. Many directors are coming here reporting that their insurance went up by a factor of 2 or even three, and other costs have gone up enormously.

I caution owners coming here complaining about increases in this economy. Boards hands are often tied. Owners complaining need to be quite studious.

Beverly, if your bylaws allow the owners to reject a budget, and so the board is stuck with reverting to the previous year's budget, be ready for the quality of services to decline quickly. Because a landscaping company, for one, may very well refuse to do everything it did in previous years for the coming year, without an increase in payment.

Bev …. How long have you been paying for the private lawn care not enumerated in the cc&rs? The defendant may bring up the en latches doctrine

Hi. I am NOT complaining about increase in dues (caps for emphasis, not yelling at you). I am complaining about a "service" being forced onto owners whereby the Board overreaches and tends to private property, rather than confining themselves to the Common Areas, and forcing owners to pay for it with over half their dues. We did agree to an increase in dues, though did not approve their budget, as it contained false line items, and inflated costs for pool, etc. (which even the Treasurer agreed that the pool budget did not reflect the true cost of the pool for the last two years and the pool budget was doubled).
Again, the only service the Board is to provide is maintenance of the pool, and the three lots which are Common Areas (mowing/trimming these).

Joe, it has been for years. However, our CC&R does have the statement that not enforcing any part of the Covenant does not preclued anyone from doing so in the future. And, they have been asked about this many times in the past, though they continue to stick to their guns. Personally, I think whoever started it used it as a way to get their own lawn tended while getting others to pay for it, even though, under the CC&R, it was not legal.

Now, that's an interesting take on it.

Another good insight. Thank you.

Let the board sit on their ass and listen to their arteries harden

I came home one day and two men were spraying a coating on my driveway. We didn’t know who they were, they came without being called and without a contract. I made them stop and they tried to force us to pay $3,800. There is no way they would succeed in collecting for a service we didn’t ask for and didn’t want.

Lol. No, all the lots are not the same size. Some are twice the size of mine. Also, it takes the guy 3 min for my rear yard and the same for the front (I've timed him). He mowes twice a month. I should be paying him $12. And, no all Board members don't own end units. But, again, the issue is the Board paying for someone to maintain private property when the Covenants state that dues are for the repair and maintenance of the Common Areas only.

Someone probably has asked about this; I may have read this thread too quickly.

My understanding from another TN poster elsewhere s that there isn't HOA legislation. So you must rely on your own Bylaws about elections. You also must rely on TN corporations codes assuming you're incorporated. Those codes should tell how such corporations may elect directors and officers. They may or may not say something like "unless your Bylaws say otherwise."

Board members counting ballots when they are candidates for reelection is outrageous and everyone should be angry. That's against the law is some states.

Many times ignorant board members yell "precedent" when the Assoc. behaves outside what's permitted in their governing docs. "we've always done it this say." But your CC&Rs and mine too say that just because a covenant has been violated for a long Tim dies not mean an owner can't take action or a Board.I think you' said that others have complained about this expenditure over the years so this violation has not been ignored. If these complaints hav been n writing, there should be no statute of limitations issue or the "doctrine of laches." issue.

I hope that you and other neighbors who agree with you should do everything you can to support the neighbor who's using this through legal action. The more support from the rest of you, the more the board will perhaps decide to rethink this

Thank you, for your thoughtful reply. I, too, think that the proper course would be for the Board to stop all lawn care on private property, continue to maintain the Common Areas, and then each homeowner who wishes to have lawn care contract with the provider individually. However, getting the Board to agree will most likely require court action. This Board does not treat the HOA money as the owner's money, rather it seems their own personal "piggy bank." For example, while the Common Area walls were in need of repair and paint, they chose to spend $4000 to convert our pool from chlorine to saltwater, without informing the owners. Then, when the City cited them for the state of the Common Area walls, they came up with a scheme to get money from owners offering to paint/repair any walls any owner requested, if said owner would pay them separately. Then, and only then, did they repair the Common Area walls. Some of the work paid separately by those owners who asked for the work to be done has still not been done. Not only that, but the Board instructed the company who did the pool conversion to not speak with anyone other than Board members, so no owner could get information as to the real cost of the conversion. When this was brought up at the Annual meeting, they said the conversion had to be done because the sand in the pool pump was going to need to be replaced. I'm sure that would have been less than $4,000, and they would have then had the money for the Common Area wall work. Of course, over the long haul, saltwater pools may be less expensive to maintain. However, that could have been done AFTER the long neglected Common Area work was taken care of. I'm telling you, this Board is a cluster. And, we cannot prove the shenanigans with the vote, even though any thinking person feels it is totally unacceptable for a Board member or nominee to be anywhere near the ballots and counting.

I don't know how many units you have in your HOA. If there were 6 candidates i am guessing you have at least 200 townhomes. You stated that lawncare is $17000 annually. Lets say every one does their own lawn. The hoa would probably have to pay at least 6000 for the common area. 11000 / 200 homes / 10 months / 2 mowings a month. That works to $2.75 to have the HOA mow your lawn. It sounds like you are shooting yourself in the foot.

Our Declaration states under what circumstances the association has authority to enter onto a separate interest; it is only in connection with construction or maintenance of the common area. It would be interesting to see what your docs say about it.

Thank you. I plan to contact the insuror this week.

Every time they mowed your lawn after you advised them not to is a trespass.