Rule enforcement...

I know I keep rehashing the same issues, but sometimes I need to ask my questions in a different way.

My question is: Do all rules have to be enforced equally and fairly?

We received a final letter on our Washer and Dryer issue that reads:

“As you know the Board of Directors has been reviewing the issue of approving future installations of washers and dryers. The mater has been under review since February and has involved interviews with various plumbers, who are familiar with Village Walk.

The primary concern was whether or not the existing structures could adequately or effective handle the addition of a washer and dryer. Based on feedback that was received, the Board has determined that it is in the best interest of the HOA not to approve any future washer and dryer installations.

Please know that this decision was not made in haste or without a lot of thought. To the Boards credit, they have come to the realization that the installation of a laundry drain line is in fact detrimental. Enclosed you will find the written statement from “USA Jetting”, who services the property once a year to address drain blockages.

The decision to not authorize future installations was a very difficult one. However having made that decision the Board must now focus on those units that have washers and dryers currently installed. To this end we are requiring that units with washers and dryers currently installed, but not approved, be removed by December 31, 2008. In the interim the Board will wrestle with the remaining issues of units with approved washers and dryers.

Again we know that this is a very sensitive issue, and one that affects many units. However, to do nothing would adversely affect every unit, and jeopardize the Association as a whole.”

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Our rules state:

“One of the primary functions of the Association is to ensure that the polices and procedures set forth in the Governing Documents including these Rules and Regulations, are observed by all owners and tenants. The objective of the enforcement of the Rules and Regulations is to preserve the value of the project, as well as to ensure that owners and tenants are treated fairly, and that everyone follows the enforcement procedure.”

Yet, the Association (Board of Directors) has made the decision that three people can keep their washers and dryers: the BOD president, her best friend who is also on one of the committees, and a third person.

Someone on here said that the board can not deny an ARCH request for the same change that has been previously approved…

Here are some excerpts from some case laws I found in CA:

**"It is a settled rule of law that homeowners' associations must exercise their authority to approve or disapprove an individual homeowner's construction or improvement plans in conformity with the declaration of covenants and restrictions, and in good faith.”

**“When a homeowners' association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious.

"The criteria for testing the reasonableness of an exercise of such a power by an owners' association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner."

***“1] Under Civil Code section 1355, reasonable amendments to restrictions relating to a condominium project are binding upon every [81 Cal.App.3d 694] owner and every condominium in that project "whether the burdens thereon are increased or decreased thereby, and whether the owner of each and every condominium consents thereto or not." fn. 7 Whether an amendment is reasonable depends upon the circumstances of the particular case. (See Riley ... Stoves, supra, 526 P.2d at p. 752.”

My concern is that they are keeping their washers and dryers knowing potential problems could arise to their unit and other units. To which all homeowners would have to pay for.

What matters is that everyone is treated fairly and that the board honors their responsibilities and fiduciary duties when making decision. The question should be why would the BOD President knowing exclude herself from this ruling which could have a huge impact on the financials of the entire association.

I am more worried about why they are not making plans to fix or replace the plumbing. Honestly, washers can’t cause that much hardship to the plumbing…

I don’t think there was ever a decision to allow washers and dryers, at least not by the current board. It was approved, verbally, by the developer who was at the time the BOD. Which is something else I find interesting, the developer knew the insides and out of every unit, why would they make a decision that could severely and negatively impact us. Also, the city has inspected and approved (specific) unit to have washers and dryer, claiming there would not be any issues with the plumbing in those units (they tie into the main drainline).

You are making unsupportable judgments. There is no indication that the current number of washer/dryers is going to cause undue harm. Only additional washer/dryers will cause undue harm.

If you want a plumbing upgrade, then I think you are barking up the wrong tree. Advocate for a plumbing upgrade, but don't base it on "fairness." If you think the president is involved in self-dealing, then fight for a change of leadership. I believe you are pushing the limits of reasonableness in your current approach to this issue.

Kim, you are going off the deep end here! You are hurting your own case. Why? Because they were not approved.

" To this end we are requiring that units with washers and dryers currently installed, but not approved, be removed by December 31, 2008. In the interim the Board will wrestle with the remaining issues of units with approved washers and dryers."

It sounds as if the board is acting reasonably, but you may not be.

Kim you can seek a recall of the current BOD or if you can get the support, you can overturn the rule for at least a year under CA law. However I would not put it past the BOD to declare this an emergency rule.

Civil Code §1357.140. Member Veto of Rule Changes

(a) Members of an association owning 5 percent or more of the separate interests may call a special meeting of the members to reverse a rule change.

(b) A special meeting of the members may be called by delivering a written request to the president or secretary of the board of directors, after which the board shall deliver notice of the meeting to the association's members and hold the meeting in conformity with Section 7511 of the Corporations Code. The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Members are deemed to have been notified of a rule change on delivery of notice of the rule change, or on enforcement of the resulting rule, whichever is sooner. For the purposes of Section 8330 of the Corporations Code, collection of signatures to call a special meeting under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member's interests as a member.

(c) The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), or if the declaration or bylaws require a greater proportion, by the affirmative vote or written ballot of the proportion required. In lieu of calling the meeting described in this section, the board may distribute a written ballot to every member of the association in conformity with the requirements of Section 7513 of the Corporations Code.

(d) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(e) A meeting called under this section is governed by Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of, and Sections 7612 and 7613 of, the Corporations Code.

(f) A rule change reversed under this section may not be readopted for one year after the date of the meeting reversing the rule change. Nothing in this section precludes the board of directors from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board of directors shall provide notice of the results of a member vote held pursuant to this section to every association member. Delivery of notice under this subdivision is subject to Section 1350.7.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 1357.130.