Requesting Information from Uncooperative Boards

Recently the HOA had passed new covenants for sections of our neighborhood. They had not held a meeting and had been collecting these signatures for over three years (my deceased mother voted on the issue the first time it was brought to vote but since my brothers and I have come to own the home). Concerned with the direction of the HOA, we withdrew membership from the HOA and requested information regarding the process, as well as begin to attend meetings. Their lawyer responded to our letter telling them the HOA had not authorized them to tell us what laws they used to validate their process, as well as communicate with us any further. Communicating with the board members was much difficult, we get no responses when we call them. When we attended the meeting, it was our first since we became owners of the home so we decided to do our research on the covenants and see how it proceeds so we can get a grasp.

While at the meeting, another homeowner requested information regarding the mandatory assessment, but the president told her that she was not allowed to speak because she was not a member, yet the mandatory assessment is placed on every home in each ratified section.

We have been getting more involved in the association but with the refusal to answer our questions, the only method we have to find out more is to obtain a lawyer (the HOA's lawyer told us they were not allowed to answer anymore of our questions and our attorney could pull the information).

I noticed Florida statutes state:

720.306
RIGHT TO SPEAK.--Members and parcel owners have the right to attend all membership meetings and to speak at any meeting with reference to all items opened for discussion or included on the agenda. Notwithstanding any provision to the contrary in the governing documents or any rules adopted by the board or by the membership, a member and a parcel owner have the right to speak for at least 3 minutes on any item, provided that the member or parcel owner submits a written request to speak prior to the meeting. The association may adopt written reasonable rules governing the frequency, duration, and other manner of member and parcel owner statements, which rules must be consistent with this subsection.

I am uncertain how the HOA can not allow someone to speak, as well as not speak with us or disallow their legal council to speak with us.

Our board consists of 9 individuals, four board member has multiple positions, with two vacancies. I understand that they have a large quantity of work to accomplish because of lack of volunteers, but at the same time when we have tried to contact every member, they did not respond. That is what prompted us to consider getting a legal opinion.

The only other issue we have with the board is that two of the members reside in the same home. The Secretary of the HOA owns the home and his signature is on all votes while the President has no voting rights (I believe our covenants state that property ownership is required for membership).

Our sole purpose is to learn about our property rights and to ensure that no person or organization has infringed on them unlawfully. If they respond to us and everything checks up legally, we have no problem paying any assessment, but the level of noncooperation is aggravating and at times discouraging.

Membership is voluntary to our association. There used to be a 100$ membership fee but that has been dropped for a mandatory 100$ assessment on all homes in each section that adopts new CCRs. I live in a section that has supposedly passed the new CCRs. I say supposedly because after reviewing all the documents from the clerks office, Florida statutes, and CCRS (old and new), there have been numerous discrepancies.

We have paid the assessment, but under legal council sent it certified and under protest. According to the rules, to become a member, you must own a home. One of the discrepancies is that the HOA president does not own a home.

The HOA board also told their lawyer not to communicate with us any longer and had their lawyer tell us that if they take us to court they would surely win and seek retribution.

My mother was a member of the HOA in 2005. That is when the voting first started for the change from voluntary to mandatory. She had voted "no". She passed in 2005 and we became owners and continued in the HOA through 2006. We withdrew membership because the changes that the board was trying to make stated that once you joined, you were a permanent member, but if you were not a member at time of the revised covenants, you would not become a member. Since 2005, the HOA did not hold any votes but kept a running tally for 3 years to acquire a simple majority of 51%. What confuses me is that Statute 720.306 b states that "any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association". Once they receive their signatures, they mailed out certified letters to every homeowner (ours arrived in April) giving us a couple weeks to pay the new yearly assessment or face their new fine structures (which they have made to be the maximum by law).

In regards to HOA membership, the CCRs state:

Membership shall be appurtenant to, run with, and shall not be separated from the real property interest upon which Membership is based.

They do not specifically mention the word Board in any of the sections regarding membership.
The reason why I looked at this was because of his insistence that a "non-member" was not allowed to speak. The president does not own a home but resides with another board member (the Secretary). What is a concern to me was that this current board had come to power in 2002 as a result of a special meeting. The following month they obtained Director's Insurance and the President became a signatory for the HOA's accounts. Soon after that they pushed a rewriting of the covenants, as well as numerous building projects (irrigation & landscaping, wall construction, speed bumps, lighting, etc.). They promote these measures as part of the "Fair Share" act and constantly stress the importance of maintaining common areas. When looked into further, all common areas they reference are County properties and public right of ways.

What is difficult is trying to gauge the intent of the board and if it is in the best interest of the neighborhood or if a small group had hijacked the board. Our previous board seemed to keep the status quo and our homeowners association seemed to have a thing called a "super majority", making the vote needed for change to be 99%. But the only place I found mention to this was in an archived newsletter from late 2001. Prior to 2005, we were satisfied with the HOA but the changes in the CCRs seemed to give more powers and very vague authority to the HOA, and when they started to become more aggressive with us we began to look into our rights.

I realize that there are a lot of hours involved in running an effective association and requires a lot of volunteering, but I also believe that an organization in charge of governing your property needs to be looked after carefully, and unfortunately homeowner apathy is present (ours was 60% inactive out of about 1000 homes), which leaves 40% of the people running things.

We are currently awaiting a court date in Sept. that will determine a majority vote trying to make us a mandatory HOA. We live in VA and our HOA was never set up properly. We have no Declaration giving the HOA the authority to do anything. Our CCR's do not mention any HOA. For over 30 years our HOA has functioned as a mandatory association. In 2006 the CCR's were changed making some of the lots in our sub-division mandatory and excluding some. We do have private roads, but they are owned by the property owners and maintained by the HOA. The VA Supreme Court has ruled that to be a mandatory association there must be certain documents filed in the land records office. Our BOD was told by the District Court that it didn't have the power to place a lien on properties(they have and still place liens). The BOD has appealed the lower courts opinion. Several of the property owners have filed an for injunctive relief and declartory judgement. The bottom line, our HOA is a Civic Association..not a POA and does not qualify to be part of the Virginia Property Owners Law..and to become a mandatory association it will require a 100% vote from the membership..in the meantime..the HOA is acting like a mandatory association..it's one big, expensive mess. If the BOD had contacted an attorney that understood HOA law all of this could have been avoided. It was a motion at the last annual meeting and the BOD talked the membership into voting against it..reason it would be too expensive..What a shame!
MaryN

All of the properties must use the common roads to access their property. All of the properties share the same CCR's. For some reason..several of the properties never "joined" the HOA..yet the owners served on the BOD for several years. The owners who don't pay for each lot own several lots which boarder each other. Other property owners that own 2 lots are expected to pay for 2 lots..even when a house sits right in the center of 2 lots. Ten years ago..the battles began. The controlling docs state..each lot shall share EQUALLY" for road maintenance.. at the time of the CCRs were filed at the courthouse there was no HOA. The developer never filed the proper paperwork. The BOD not only filed a lien on several proerties (that refused to pay until the HOA billed on an equal basis)..but also took them to small claims court. The Judge spent almost 2 hours explaining that the 2006 covenants were not legal..his exact words "these covenants do not stand in my court nor will they stand in any other court"..the new covenants make most of the lots mandatory members..the lots(5 or more adjacent lots)were not made members..but are supposed to pay a "user" fee. Note that the owners of those lots voted to make the others members and exempt themselves. There are many, many other changes..lots of new covenants..etc. The covenants were passed by a majority vote(as per the CCR's)but the Judge stood firm that to make such a change it would take a 100% agreement..The case that has been mentioned about the papers being filed in the land records office is the Dogwood Valley case. From what I understand the ruling is affecting many HOA's in VA. Our attorney(CAI)told us we have a Civic Association..with no power..because of the paperwork that is filed at the land record office. I believe Dogwood Valley tried to file papework later..and the VA Supreme Court upheld their original ruling..it's not a POA/HOA. Does that help? It's so confusing.
MaryN

Mary,

Please bear with me as I am still a bit confused. Here's what I think you are saying. Please correct me if I've gotten anything wrong.

In the beginning there was a civic association made up of a number of property owners, some of which now want to form an HOA (or think they've already formed one). All the parcels had deed restrictions (CCRs); but these CCRs did not call for an HOA so one was not formed by the developer. When these prop. owners decided to form an HOA, they neglected to obtain a 100% vote, instead only getting a majority to agree. Consequently they filed liens against those prop. owners who did not pay the assessments (probably those who voted against the HOA??). A judge declared the HOA null and void and the liens illegal. Even your attorney said there is no HOA only a civic assn.

Bottom line: Either get 100% of the property owners to agree to forming an HOA or drop the issue and just continue being a civic assn. If this so called board continues to do as they please they are going to find themselves constantly in court, and rightly so!

Mary,

The property owners who are listening to this renegade bunch of "know-it-all's" are in for a rude awakening, I fear. Although I have heard of a few voluntary assn's changing to mandatory without a 100% vote; I do believe -- legally speaking -- a 100% vote is really required. IMO, it's only common sense.

I'm curious to know where in VA you are located. I lived, many years ago, in Fairfax Co near Reston. My old neighborhood has changed drastically. It used to be a few scattered homes on acerage in the country. A lot of these homes were bought by developers. They tore down the homes and built multi-million dollar homes on small lots. I'm sure everything is controlled by HOAs too. The few homes on the private road where I lived have all held out.