HOA dispute issue

Started by HomeownerT • 26 replies • 620 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

HomeownerT (Tennessee)
Posts: 2

Posted:

I need some help with an HOA dispute issue. I am part of an HOA in Tennessee. I built a new home 2 years ago. Per our bylaws, special requests/changes to the building rules are allowed if you get approval ahead of time. I got approval from previous board (one in place 2 years ago) to do something different than the bylaws allowed. I have written documentation of this approval. New board gets elected. Now the new board is telling me I have to remove the item I got special approval for previously. They state they don't care about the previous approval, remove it or face a lawsuit. This is a purely cosmetic item. I can find nothing in the bylaws that give the new board power to revoke previous board decisions.

Anybody been through something like this situation before? Any help/advice is greatly appreciated.

TerriS6 (California)
Posts: 3,284

Posted:

Your state should have a statute of limitations to enforce HOA restrictions.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Typically, when a member receives written approval from the Association and the Association wants to remove that approval at a later date, the homeowner is eligible for damages as they acted in good faith with the Association. In this case, the damages would be the cost of the item, the cost to install it, the cost to remove it and the cost to repair anything back to the way it was prior to the change.

My suggestion would be to meet with the board. Bring someone along as a witness (ideally not a family member). Explain to the board that you acted in good faith with the Association. Requested and received prior approval. That you are certainly willing to work with the current board but you would be suffering damages based on such a decision and should be compensated. Then, offer a compromise, you will agree to remove the item when it is no longer maintainable or when you sell your home, which ever comes first.

If you don't want to meet in person to discuss this with the board, then I would suggest hiring an attorney to write a letter for you. This, actually might be better incase the Association does want to seek legal action.

I would consider the approval a contract and TN has a statute of limitations on contracts of 6 years.

See: Can a HOA resend a approval on a fence after the Exact fence they approved was installed. GA attorney

Questions (doesn't change my advice):

Is the change in violation of the covenants/restrictions?

If it is, do the covenants allow for waivers?

TerriS6 (California)
Posts: 3,284

Posted:

If you needed a local permit to build/install it, it's probably a vested property right.

ElleN (Idaho)
Posts: 4,420

Posted:

I agree with TimB4's response. You (the owner) relied on the HOA's approval to do xyz. If push came to shove and this went to court, past decisions have shown courts ordering the HOA to pay to put the home back the way it was. (I am speaking from general memory and am not offering a citation.)

If city/county permitting was involved, you (the owner) might have a vested property right with respect to the city and county, but I do not think this applies to covenant issues, as in a HOA dispute.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

pay $30month to enroll in a prepaid legal service and get a lawyer to send a certified letter outlining what tim said above. Your Board sounds like a powerhungry bunch of jerks that need to be voted out.
document everything and since TN is a one party consent state you can record it on your smart phone.

I would try meeting with them first though. Most declarations state a meeting is required before fining a home owner.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By HomeownerT on 11/26/2023 5:45 AM
They state they don't care about the previous approval, remove it or face a lawsuit. This is a purely cosmetic item. I can find nothing in the bylaws that give the new board power to revoke previous board decisions.

Anybody been through something like this situation before? Any help/advice is greatly appreciated.

I now want to get down to where the pedal hits the metal here (in my view anyway).

If the cost of fixing this "purely cosmetic item" is negligible, and the cost of lawyering up is a lot, this argues for just fixing the item as the HOA now dictates.

If you elaborate on how much it would cost to fix this issue, then I think this would be helpful.

HomeownerT (Tennessee)
Posts: 2

Posted:

Thank you for the replies. I will try to a bit more detailed.

The item is a mailbox. We built a brick home with special brick. I requested to do a brick mailbox that matches the home. This is a violation of the covenants but the covenants are poorly written 20 years ago. The covenants do allow for waivers or changes "as the ARC deems appropriate". I requested the waiver and followed rules appropriately (in good faith). I got approval from the sole member of the ARC at the time who was also the president of the HOA board at the time. He gave me approval through email and confirmed that it was ok the day of mailbox construction via text. New aggressive board comes along and decides to file lawsuit against another HOA member. The new board realizes all the other small violations going on in the neighborhood and quickly tries to start enforcing things. They send me a letter to remove the mailbox or face lawsuit.

Its a mailbox so I don't want to spend a lot of money on lawyer fees. However brick mailboxes with special brick are not cheap either probably around 2,000 with the pavers and brick. It looks really nice.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

In my experience, often people post here to get a kind of "reality check." Here is my take:

Respectfully, you might not have followed rules appropriately. If the ARC is made up of more than this one person, then I am not persuaded you have proof that the ARC approved the mailbox.

Some might say, "Well ElleN that's quite the sea lawyer response... " (And I am not an attorney). But from lots of reading of case law and witnessing in person a number of HOA lawsuits, the details will matter. My favorite HOA attorney put it succinctly and well: The courts want to see HOAs and owners complying with their governing documents. Which in some cases, means every i dotted and every t, crossed. The higher the stakes, the more important it is for the i's to be dotted and the t's to be crossed.

Working against you as well is the fact that this is a violation of the covenants. It does not matter that the covenants are old. The courts view covenants as "contractual terms." With some caveats, the courts enforce these "contractual terms." Where the Declaration gives the ARC discretion, the courts says this discretion must be exercised reasonably. At this writing I cannot say that an ARC approving this mailbox (in violation of other covenants) was reasonable.

In my opinion the enemy here is the messiness of the situation. This will cost you in time and money.

Maybe write one more letter explaining the approval. But if the board digs in, then I am inclined to say you too made mistakes, and you should correct the mailbox.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I disagree that the OP made mistakes.

The covenants allow for waivers.
The OP requested a waiver prior to building.
The OP received an email from the President of the Association granting the waiver.
The OP took the extra step to verify the approval again prior to construction.
The OP received verification.
Upon verification the OP built the mailbox enclosure.
2 years later (if I understand correctly) a new board doesn't like it and wants it removed.

A lawsuit will cost thousands that you may or may not recoup in a win.

A letter may only cost $300 to $500

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By HomeownerT on 11/26/2023 7:39 AM
Thank you for the replies. I will try to a bit more detailed.

The item is a mailbox. We built a brick home with special brick. I requested to do a brick mailbox that matches the home. This is a violation of the covenants but the covenants are poorly written 20 years ago. The covenants do allow for waivers or changes "as the ARC deems appropriate". I requested the waiver and followed rules appropriately (in good faith). I got approval from the sole member of the ARC at the time who was also the president of the HOA board at the time. He gave me approval through email and confirmed that it was ok the day of mailbox construction via text. New aggressive board comes along and decides to file lawsuit against another HOA member. The new board realizes all the other small violations going on in the neighborhood and quickly tries to start enforcing things. They send me a letter to remove the mailbox or face lawsuit.

Its a mailbox so I don't want to spend a lot of money on lawyer fees. However brick mailboxes with special brick are not cheap either probably around 2,000 with the pavers and brick. It looks really nice.

There must be other neighbors who got approvals in the past that wouldn't be granted by your new board. Perhaps contact all your neighbors describing the situation, saying nobody wants association funds used to sue members who got permission to improve their homes. There is always a recall of board members available. Sometimes boards need member approval to sue. I would check all your governing documents carefully. Also rules are usually required to be reasonable.

SusanO3 (California)
Posts: 163

Posted:

Can a ARC be just one person, who is also President, I’d feel better for your chances if ARC decision reflected the consensus of 3

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By SusanO3 on 11/26/2023 9:46 AM
Can a ARC be just one person, who is also President, I’d feel better for your chances if ARC decision reflected the consensus of 3

I would think that it depends on how many people volunteer.

In the Associations I've been in, if there were no volunteers for the ARC/ACC the Board would serve as the reviewing authority.

So, were there no volunteers and the Board approved or was there only one individual assigned?

KerryL1 (California)
Posts: 14,550

Posted:

Along with Susan: Unless your HOA is unique, HmOwnT, board presidents have very little authority and, so far as I've ever seen on this forum, have no authority to approve an ARC change that conflicts with the covenants. The president is NOT "the Board" in non-profits, in which Boards make decision & govern. It is possible that your documents give presidents special powers, for example, in the list of their duties in your Bylaws?

It also is true that some lazy or ignorant boards vote that the president have certain powers that are not in the Bylaws. Such. one would be found in a meeting's minutes. Such directors often don't realize that it's the board that will be liable if the pre z makes troublesome mistakes

In addition, many HOAs are required to have ARC Committees and the covenants or some other document specifies how many members must comprise the ARC and what they must do to approve (or not) a change. Often a majority of the Committee must vote and the vote is memorialized in the ARC's meeting minutes.

So the membership of an ARC and approval requirements & powers of your ARC need to be examined. I'd say that if the "approval" you received conflicts with any requirements in your covenants or any other document, e.g., Building Rules" or some such, you're out of luck.

But I still like Tim's first idea the best. Try to have a meeting with a couple of board members and plead your case. OR with the ARC.

Btw, doesn't your HOA have any policy about owners being called to a hearing when they are charged with a violation? How DID you get notified to remove your mailbox? Did this Board make that decision at a meeting on xx/xx/xxxx??? WHO was the notification from??

I'm thinking that we don't have enough info about the Board's demand to remove your mailbox and if it complies with your own docs or TN codes (which apparently are skimpy)

ElleN (Idaho)
Posts: 4,420

Posted:

I admit I missed this:

Quote:

Posted By HomeownerT on 11/26/2023 7:39 AM
I got approval from the sole member of the ARC at the time who was also the president of the HOA board at the time. He gave me approval through email and confirmed that it was ok the day of mailbox construction via text.

If it is documented that the ARC had only one member (who happens to have been the President), then I feel this is in the OP's favor.

KerryL1 (California)
Posts: 14,550

Posted:

I can agree with Elle's most recent IF the governing documents allow an ARC to have one member, or that the president somehow may make ARC decisions OR there are minutes in which the Board gave the president such authority.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Home

I would cordially present the information/approvals I received to the BOD. If they still say say no, then have an attorney write a letter stating your right.

KerryL1 (California)
Posts: 14,550

Posted:

It's seems to me to be worth a try, JohnC, even if the HOA's documents & written required procedures weren't complied with. But, IF part of the previous approval didn't match theWhat could an attorney write to a Board to help the OP keep his mailbox? HOA's written requirements,

JoeN6 (Virginia)
Posts: 94

Posted:

Homeowner T :

Was the current president a lot owner when you built your house ? If so , kindly inform him that the mailbox has been there for two years and he had plenty of opportunity to protest- complain , and you heard nothing . At which point you would have explained the procedure . Now , all of a sudden it is a problem . It’s really not even a problem because it sounds like someone else said “ I’ll fix my _____ as long as you get that brick mailbox up the street fixed to comply ( there’s someone else who is not aware of a compleated procedure for variance.)

Does the covenants restrict any structure at the end of your driveway ? Inform them that all evidence of mailing purposes will be removed from tue brick structure ( metal door that says “ US MAIL” , the flag , etc ) and its to be converted to an intercom to communicate with visitors . Then a Home Depot mailbox will be stuck in the ground to satisfy . ( once they hear that maybe they will go away). Having explained that …explain that the brick mailbox may just as well stay .

Offer to explain the variance procedures to HIS lawyer . Perhaps if he realizes that he has to do more than tap tap tap a message from his EZ boy chair on his iPad and hit “ send” the problem may go avail

Sounds like you would prevail .

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KerryL1 on 11/27/2023 8:34 AM
It's seems to me to be worth a try, JohnC, even if the HOA's documents & written required procedures weren't complied with. But, IF part of the previous approval didn't match theWhat could an attorney write to a Board to help the OP keep his mailbox? HOA's written requirements,

It might well come down to what was their "procedure" when permission was granted. It seems the OP has "documentation". As of now, I say the OP is right.

KerryL1 (California)
Posts: 14,550

Posted:

Right, JohnC,yes, that's what I wrote above. I could have emphasized: the procedures, Gov. docs requirements, etc. at the time HmOwn's mailbox request was "approved."

LynnP4
Posts: 3

Posted:

Florida question. Developer recorded covenants 6/86 first lot deeded 7/1986. In 2017 HOA Recorded a “Preservation” of covenants, however 51 of 158 lots were expired under MRTA and statutes say if one or more lots have expired under MRTA, a Preservation is not an option but requires a Revitalization. To date a Revit has not been done which means a lot more lots have expired under MRTA and assume covenants also expired under Florida’s 30 year rule. HOA refuses to acknowledge that more lots have expired and pretend the illegally recorded Preservation in 2017 stopped them from expiring. The original 51 lots have voted not to be revitalized. The 51 owners nor the other lot owners were told about this problem until it came out with regards to an unrelated lawsuit. Can anyone tell me where the 107 lots legally stand in this situation. Now they say we need a revitalization which in my mind proves the Preservation did not work. I do not believe we even have covenants since they are now 37 years old. Help please,

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As the OP said:

I got approval from the sole member of the ARC at the time who was also the president of the HOA board at the time. He gave me approval through email and confirmed that it was ok the day of mailbox construction via text.

If he can prove this, end of story.

KerryL1 (California)
Posts: 14,550

Posted:

I only agree JohnC, IF the HOA's documents, meeting minutes, or some other "official" doc. state that the prez had that authority. Otherwise the president has no more authority or power in this regard than any other owner or board member.

The the OP writes that he got approval form the sol ARC at the time, we don't know if that sole person actually had the authority.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Expecting that the Board appointed the individual to the committee, ignore the part that they were also serving as President and, most likely, a Director.

At that point in time, they were a committee of one.
Per the OP posting, the committee had waiver authority.
Per the OP, the committee granted the waiver.

KerryL1 (California)
Posts: 14,550

Posted:

It's clear that the OP believes the individual had the authority. But if the OP cannot show us evidence that the person truly had such authority in writing, I'm afraid keeping got mailbox might be difficult to achieve.

EricR6 (Washington)
Posts: 2

Posted:

If there was a formal request and the previous board gave formal approval, you have a compelling case. While your issue may be cosmetic, consider if this had been a change of footprint or siding with engineering, permits, materials in hand. Could they stop work and tell rescind the approval? Of course, if your request and approval was less than formal and you took a wink as as good as a nod, then good luck...

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here