In SC Board cannot get homeowner's support

Started by SusanC7 • 11 replies • 1982 views

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SusanC7 (South Carolina)
Posts: 5

Posted:

Our HOA was developed in 2000 and turned over to the homeowners in 2005 in a state of disrepair plus the developers having used assessments over 5 years to pay for electricity outside of the subdivision and failing to fund a Reserve Fund. I have put a case together and presented to the Board since 2005 4 times asking them to seek relief from the developer. Some of the disrepair is the destruction of the banks on one of our ponds where people have lost property into the pond. However, that property that is lost is considered "Common Area" and is required to be maintained by the Association in accordance with the Covenants.

I became involved with the Board in 2006 in hopes of getting something done. The Board changed property managers in Sep. 2007 since the old property manager had direct connections to the developer.

We have 110 members who own 116 lots. Our Covenants are the same ones the developer had since 2000. We have to have 75% of these homeowners (116 votes) in order to pass a special assessment to hire an attorney to sue the developer for damages. We have started sending the votes as proxies that can be mailed back in since we do not ever have a quorum at a meeting. In fact, the same 15 - 20 people show up. Also, we have about 32 owners who do not live here. The majority of the members do not want to participate at all either by coming to the meetings or responding to the mailings. I started a newsletter in here but my fiancee and I have to print it as well as distribute it.

There is one faction in here created by one gentleman who has created an extremely partisan atmosphere and gotten several homeowners to go along with him even though he is giving out disinformation. One of his solutions to help us was to sell the clubhouse since it is actually a large modular home. He goes around the neighborhood on a bicycle every day and talks to any he sees outside if they will talk to him. He has been a constant disruption at meetings. He is now an "alternate" on the Board. We thought that would allow him to see how we work. Nope. He has become more of a disruption.

Our Covenants state the pond banks are to be maintained by the HOA as mentioned above. We cannot get 75% to go along with the special assessment to sue. However, if the individual homeowner were to fix his own bank it would be against Covenants as they are "Common Areas" allocated to the Association and the Association is the only one allowed to put anything on them.

So effectively, the Board of Directors is being prohibited from doing their fiduciary responsibility by the homeowners. This has been explained in 2 different mailings with no effect.

Sorry to be so long. I am wondering if anyone else with an HOA has been up against this problem. Or anyone with a suggestion for us.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

SusanC7: If a pond area is common area, why are you intent on wanting to retain/repair the area which you do not own but will have to fund by large expense? The Board's responsibility is to maintain property values, through maintenance of common assets. Not sure what you mean by "destruction of the banks", if it involves only few units or all, or if the destruction as you call it would actually impair property value. Through your effort to sue and go to court (costs!!!) you may not be able to justify the "means" to the end result.

Further, it is extremely unfortunate for your Association in general, that the resident-Board did not work with the municipality before the developer transitioned. It was at that time you would have had an ally on your side and the developer would have been forced to make things right before he left the scene.

Who owns the pond; is it dedicated to the association or is it under the local municipality or state? Have you enlisted the support of the local land development officials to give you their professional take on the pond banks?

As far as "scuttlebutt" being broadcasted, the best way to argue against that is to present a case for the positive. Whatever the positive is...
At the end of the day, it will be the majority of residents working together to vote for or against. If the residents are choosing not to rally to sue the developer, there may be more to this story.

GeraldT4
Posts: 1,022

Posted:

SusanC7 - You state, "We have to have 75% of these homeowners (116 votes) in order to pass a special assessment to hire an attorney to sue the developer for damages."

With 110 owners I believe you need 110 votes, not 116. Unless the remaining 6 lots are to be built upon, in that event the lots would represent additional votes entitled to be cast. 75% of 110 is 83 votes needed to amend. With 32 owners that don't live in the assoc. it presents a mathematical and logistical obstacle because you need 5 of those 32 absentee owners to get to 75% to approve. Math is 110 less 32 = 78 + 5 votes = 83 (75%).

Be all that as it may what you need to do is look to your gov. docs. and sight what it is exactly that restricts your BOD from special assessing. Is there wording in your docs. that governs the threshold of BOD spending?

If the BOD appointed the "alternate" bicycling fool to the BOD, can't the BOD un-appoint him?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Paul,
More than likely the "POND" is a drainage retention system which is monitored by the County but is association responsibility. There must be a division line along the banks where it is the owners property up to a certain point and then it becomes association or common property. It is usually part of the infrastructure which is a large expense.

At turnover, these areas are to be in good working order from the Developer but if they are losing ground into the ponds, that does not sound right.

Susan, Does your first set of Documents have a non allowance on sueing the Developer? Mine do but because this is probably under County control, they certainly migh be of help as this falls under either water management or environmental departments.

SusanC7 (South Carolina)
Posts: 5

Posted:

TO: PaulM -
1. 1/4 of the pond with the damaged bank is owned by our HOA (we pay the taxes & County mandates we maintain it and banks). The other side of the pond belongs to a different HOA whose developer damaged our bank while expanding the pond from his side only. Even our County Stormwater division says that developer is responsible for the damage but they have no control over it since he has nothing to do with our HOA. The worst they could do to him is withhold his deposit and it only applies to the HOA he developed so they have nothing they can do to him for damage to our side other than back up our claim which is going to require legal remedies.
2. You are SO right about the homeowners not hiring a lawyer in 2005 at transition. But that is spilled water.
3. The homeowners "not rallying to sue the developer" is because when we send out the proxies there is an extreme lack of participation or even interest. We have done 2 mailings explaining ALL the circumstances as well as 2 sets of proxies. We have had 2 meetings to explain everything but the same 15 to 20 people are there (out of 110).
4. We are actually guessing there will not be enough participation in June at the annual meeting to have a quorum and that only requires a majority. Last year there were no By-Laws for the Association, so we had to refer to the SC Code of Laws for Non-Profits which allows a meeting with only 10%. However, the Board adopted By-Laws this year and they require the majority.
5. 'Tis a mess with a lot of hand wringing.

SusanC7 (South Carolina)
Posts: 5

Posted:

Thank you very much for replying.
1. The homeowner count comes from the fact that there are 3 homeowners in here who own multiple lots. So that allows 116 votes all total as each lot gets a vote. .75 of 116 = 87 votes. The last set of proxies sent out we only had 33 responses.
2. Nothing limits the BOD spending threshold. However, Covenants specifically state for a special assessment it requires a 75% vote of all homeowners.
3. We are now looking at a clause for the regular assessments where we could put a "legal fund" into the budget that comes up for approval in June. If a majority of homeowners do not vote the budget down, we are allowed to use the new budget. However, that still does not help in getting the new Covenants approved. They were submitted for a vote along with the special assessment. 14 of the 33 votes received voted against the new Covenants even though the old ones are the Developer's and very poorly written.
I would like to contact about 3 or 4 of the persons voting against and just see what their reasoning was. But our property manager does not think I should do that as it might seem I am trying to influence or change their vote.
4. The BOD did not "appoint" this fool. When the BOD was voted in in June, there were 4 candidates and only 2 positions to be filled. There were no By-Laws ever filed for our HOA since 2000 and no one but me questioned it. However, I could not get the By-Laws written till after the BOD election. So the HOA went with what the 1st 2 Boards had been doing on the advice of the property manager. Whoever got the most votes, those 2 were on the Board. The other 2 became "alternates". Once I got the By-Laws filed, I was able to define the role of an "alternate" to work at the direction of the Board. The BOD issued this fool a letter telling him to be more cooperative and cease the disinformation campaign. That only made him madder and since he has really been spreading the pablum!!
5. I know my hair is getting grayer.

SusanC7 (South Carolina)
Posts: 5

Posted:

Donna,
You hit the nail on the head in your description. The owner actually owns the pond bank area but it is mandated to be maintained as a "Common Area".

In 2004, a new developer bought the land behind us and built his own HOA. They are not a part of us. In doing so, he expanded this pond which happens to be the one my husband and I live on. I brought this to the attention of our Developer at the time. He told me I would have to talk to the other Developer. This was all before I had any idea how to run an HOA.

In 2005, I put together a slide presentation of how the damage occurred and presented that to the new BOD elected after the Developer turned it over to us. They ignored us. We investigated a lawyer but they wanted $1,000 just to write a letter and $10,000 if it had to go to court. We did not have that kind of money.

In 2006, I presented this same case to the next BOD. They decided it was too expensive to address.

Finally, with this 3rd BOD I convinced them to request the homeowners approve a special assessment to hire the lawyer to sue the Developers. The lawsuit would not only cover repair of the pond bank (which will cost $70,000 - 21 lots) but where our Developer misused assessments since 2000 and did not turn the HOA Common Areas over in good repair.

This falls under the County Stormwater system. They have been a marvelous help from the first time I contacted them in 2005. They agree it is the Developer's fault and have written a letter stating this. We have even let the homeowners know there is law that allows Stormwater to fine us for all this is they decide to do so. The homeowners do not care. They say the people that live on the pond should fix their own property.

My husband and I are so frustrated we are ready give up and get off the Board. I am just afraid what will happen when this bicyling fool and his friends take over. In the end, he really wants to dissolve the HOA. Don't ask why. It is what he wants...

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
You and your husband should be commended for your interest and activism.
You need to continue in this manner. It seems to be evident that the associations that are well run have an active owner participation. Is there some secret to getting people to participate? Probably not, but if you keep knocking at the door someone will answer. Communication is a great tool and requires a fertile mind and a tough skin.

Have you thought of putting up your own website and get some of your information directly to the owners. The information the Board has about the Owners addresses and phone numbers is all association information and and such is open to review by any owner. Build you e-mail list by using your web site and talking to the people. Give them a place to comment (no names) on their opinion of what is going on. You get five or six people to network and you can reach everyone there in a second. Don't bash the Boards but be honest about what you know. You sound very capable of handling this. Any of note happens keep people informed. Clarify and explain what the pond issue it, explain why the developer is still responsibile. There is lots of information under the search feature on the site about Websites. In this day and age, an absolute necessity.
Check out our site at www.villageofnewhaven.info All set up by a resident that cared and now the Board has laid claim to it, but she still is the facilatator and the thing would fall to pieces if it wasn't for her. It generated immediate intrest, especially the comments section.

Give it a shot.

GeraldT4
Posts: 1,022

Posted:

SusanC7 - For what it's worth I would not call the owners that voted no, it not only may be construed as influencing, it is influencing. Because you aren't calling the owners that voted yes and asking them why. : ) Also, steer clear of the website idea. You are only going to be forced to take it down, you don't want to state something that can be considered defamatory, or use names, addresses, etc. If you insist on creating one, better make it a secure password protected sight and allow all owners access. : ) Other than that, excellent job and thank you for explaining the 116 necessary votes, etc.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

SusanC7: You are speaking about a big situation here which needs professional attention. Rather than focusing on the 'money' needed to sue the developer, you need to focus your efforts with the homeowners on the damage which was caused by him first.

You state, "a new developer bought the land behind us and built his own HOA. They are not a part of us. In doing so, he expanded this pond which happens to be the one m+y husband and I live on. I brought this to the attention of our Developer at the time. He told me I would have to talk to the other Developer."

The above raises many questions, the major being whose land is it? Of course, your issue is with the second developer, not the first. Did you speak to this developer about it? Did you bring it to the local officials so they would NOT RETURN his bond money until he fixed the pond area? You state he bought the pond land which you 'sit on'. Was the second developer given PERMISSION from the municipality to encroach on land which is not 'up for sale' but already owned--by you? If indeed, this is the situation...

Though your unit sits on or near the pond bank does not make it yours UNLESS
you have papers proving the pond bank is under your actual ownership as part of your deed and your taxes reflect this land owned by you?

Your first concern needs to be the pond bank ownership situation, next, get a professional out to state what, if any, maintenance needs to be carried out to "secure the bank area" on...whose behalf--that is the question. Not to be blunt, but right now to all other homeowners it is a situation whereby you, alone, will or will not benefit. Until you get a land/water professional (or the municipality/water officials) to survey the situation, and IF the surrounding pond bank is being compromised, that's when the municipality will be your ally to go after the second developer to make it right.

Don't lose heart, take it one step at a time. But, get your facts straight, get the information right from the source with legally filed plat plan and paperwork needed. It may be this is NOT a major land concern but natural erosion which occurs with living on/near a pond.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
To trey and keep thing simple, I'll think I'll bow out of this thread. In my opinion I think you and your husband eventualy will prevail, it would be much easier if you had a strong communication tool to reach the owners, and I suggested you start one. But for what ever reaso0n this thread is falling apart. Paul I have absolute trust in and endorse nearly all he posts. He is indeed a professional and knows his job and is a great asset to this site.

To Gerald:
I will ask politely that you do not get on a thread and treat any comments I make is a casual or argumentive manner. You are acting like you are all things to all people and getting more abrasive with each post. If it is your intent to see if you can splinter this aite, please go somewhere else. We get along and go along here. The case in point here is your remark about the website. Do you think I made up my recommendation to use a web site as a communication tool? Then you come up with "they" will make you take it down. "They", whoever they are don't have any authority to take down any web site that is used in the manner I described and the format I am suggesting. Susan is a member of the Board and the Board can put up a website as well as an individual. And don't give me they will be sued for slander, etc, etc. I give the posters here more credit than that. So, give all the advice you want, it's an open site, but, you are not the only one posting on it.

GeraldT4
Posts: 1,022

Posted:

Quote:

Posted By RobertR1 on 02/16/2008 7:28 AM
Susan,
To trey and keep thing simple, I'll think I'll bow out of this thread. In my opinion I think you and your husband eventualy will prevail, it would be much easier if you had a strong communication tool to reach the owners, and I suggested you start one. But for what ever reaso0n this thread is falling apart. Paul I have absolute trust in and endorse nearly all he posts. He is indeed a professional and knows his job and is a great asset to this site.

To Gerald:
I will ask politely that you do not get on a thread and treat any comments I make is a casual or argumentive manner. You are acting like you are all things to all people and getting more abrasive with each post. If it is your intent to see if you can splinter this aite, please go somewhere else. We get along and go along here. The case in point here is your remark about the website. Do you think I made up my recommendation to use a web site as a communication tool? Then you come up with "they" will make you take it down. "They", whoever they are don't have any authority to take down any web site that is used in the manner I described and the format I am suggesting. Susan is a member of the Board and the Board can put up a website as well as an individual. And don't give me they will be sued for slander, etc, etc. I give the posters here more credit than that. So, give all the advice you want, it's an open site, but, you are not the only one posting on it.

RobertR1 - With all due respect I will ask politely that you not accuse me of being a "splinter", or argumentative. If you feel that way, please keep it to yourself because there are posting rules and I firmly believe you've crossed the line. My intent is, was, and has always been to provide recommendations to the post and offer input input to the thread to assist the discussion of topic and commentary. You state I am acting like all things to all people on a website that seeks input from everyone!!

As a matter of fact I was being politically correct regarding my opinion and simple statement to Susan to steer clear of a website. I chose not to get into the specifics of your directed recommendation to her to "put up your own website and get some of your own information directly to owners". Stress on your words "your own". That's a red flag to me and ooops, sorry Robert forgive me for trying to send out a simple recommendation to Susan as a bit of caution on that. I was not trying to attack you or be argumentative. I was actually genuinely concerned that Susan might start her "own website", rather than do it through the Board or in a different format, ie. door to door, etc.

You stated very specifically to Susan as follows: "Have you thought of putting up your own website and get some of your information directly to the owners. The information the Board has about the Owners addresses and phone numbers is all association information and and such is open to review by any owner. Build you e-mail list by using your web site and talking to the people. Give them a place to comment (no names) on their opinion of what is going on."

I added my recommendation that Susan at least make the site password protected, etc. How often have we read posts on this site about rogue Board members doing things on their own, website taken down even though it's intention was to assist, etc.?

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