Easement via Quiet Title Action

Started by DonN • 14 replies • 1704 views

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DonN (Michigan)
Posts: 357

Posted:

LindaH9 posted the quoted text on Legal Fees Paid by All Members. Since this post is a different subject, I have created this new thread for HOA Talk contributors to discuss the issues.

Quote:

Posted By LindaH9 on 11/14/2008 10:55 AM
Don in Michigan.........Based on your knowledge........I am a former board member of a voluntary homeowners association in Michigan. A neighbor is trying to quiet title an easement that all property owners have in their deeds. The lawsuit was filed against each property owner. When I was on the board I became aware of a situtaion that no one else had knowledge of. Our President did not enough money for his retainer fee and volunteered the association into a lawsuit that we were not named as a defendant. He used association funds but will not share information with the members regarding the lawsuit. Many property owners are in default for not answering the summons they received individually. Our dues are paying his personal legal fees. I have a different lawyer than his. So my dues pay his legal fees and I have my own personal legal fees. Members dues are for a lawyer that is not representing them at all. How can one person volunteer an association to litigation, use their membership dues, and restrict legal information from the members?

Incidently this same person prompted the lawsuit years ago. After $23,000 in donations for legal expense and 3 years of litigation the Judge ruled that the association had no interest, ownership, or rights to this easement.

The current lawsuit that I am asking about is the 2nd lawsuit. The plantiffs corrected the defendants naming all property owners (individuals). The association owns a park, the park does not have the easement in it's deed, the park cannot walk to the beach, the park was not served a summons nor named as a defendant. The park does not have an address to be served. It was the loop hole that one person used to help defray the Presidents (individual property owner) legal fees. When we call the lawyer to ask for updates he will not take our calls.

Is this legal? Where would I go if we are a non-profit, voluntary dues homeowners association for free legal advice?

My reply will be added.

Don Nordeen
Governance of Property Owners Associations

DonN (Michigan)
Posts: 357

Posted:

I am not an attorney and this is not legal advice, but there is some common sense that should apply.

Any lawsuit has to be taken seriously. Read the Summons and Complaint. Each named defendant likely has only 30 days in which to reply. After that, the plaintiff could file a motion for a default judgment. If granted, the plaintiff would likely prevail regardless of the law, facts and merits.

A voluntary HOA likely has no standing to act on behalf of the defendants. The HOA would likely be required to have such an authority in the CC&Rs. Read the CC&Rs to identify what authority the HOA has, if any, regarding property issues.

An obvious action for the named defendants to take is the engage one lawyer for all defendants. That should keep you attorney costs to a minimum. Ignoring the Summons and Complaint which has your name as a defendant will likely make matters worse.

Don Nordeen
Governance of Property Owners Associations

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Don,
Man, I would like to comment if I knew what I was commenting about. Please, no comments on me having to know what I am talking about, to comment

.

Anyway, I am confused about this whole thing, what's going on?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Don said: "A voluntary HOA likely has no standing to act on behalf of the defendants. The HOA would likely be required to have such an authority in the CC&Rs. Read the CC&Rs to identify what authority the HOA has, if any, regarding property issues"

I think Don has hit the nail on the head. This is a VOLUNTARY association (is it even incorporated? What is the definition of "Member"? What is its mission? How could it have applicable CCR's?)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Thank you Susan,
I appreciate that and understand that part somewhat, but, I sure agree about the problem is rooted in a Volunteer HOA. That is nothing but trouble.

However, what went on to get this mess to where it is now. Your good at this, explain why this came about.

MaryA1 (Arizona)
Posts: 7,043

Posted:

The basic difference between a mandatory assn and a volunteer assn is that every property owner is required to belong to a mandatory assn, while the property owners may belong or choose not to belong to a mandatory assn. There are CCRs (deed restrictions) that the assn can enforce even on the non-members. I believe the assn can be a nonprofit corp the same as a mandatory assn.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Mary,

Could you give us, if you have one, an example of:

>>>There are CCRs (deed restrictions) that the assn can enforce even on the non-members.<<<

I'm not familiar with voluntary HOAs, and the concept strikes me as nutty, but it would seem at first glance that if an HO didn't opt in to a VHOA, the rules wouldn't apply.

MaryN3 (Virginia)
Posts: 8

Posted:

I am in a subdivision that is a voluntary association. It is incorporated. Each deed states that each parcel shall share equally in the maintenance and repair of the roads. When a property owner is behind on the fees, individual property owners can take the owner to district court and have the judge rule for them to pay. The association can not/may not put a lien on the property. The only way, in the state of VA, and I believe NC, for the subdivision to become a mandatory association, is for 100% of the owners to agree to change the CCR's. If some of the property owners want to become members they can sign an "agreement" that their property will be part of a mandatory association and the agreement will run with the land. To confuse matters..some of the property owners in our subidivison did sign an agreement 20 years ago to pay their road/maintenance fee to the association..those lots can have a lien placed on them. We have just completed a long, expensive court battle and this is the ruling of the circuit court.
MaryN

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary, could you post the link for the court ruling? I am sure some of our legal eagles here would like to read the judges' decision. A retroactive action of this sort seems significant..........to me, at least.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By JohnK3 on 11/23/2008 10:42 AM
Mary,

Could you give us, if you have one, an example of:

>>>There are CCRs (deed restrictions) that the assn can enforce even on the non-members.<<<

I'm not familiar with voluntary HOAs, and the concept strikes me as nutty, but it would seem at first glance that if an HO didn't opt in to a VHOA, the rules wouldn't apply.

John,

There is a very large (over 43,000 members) assn in my area that is voluntary. Recently a property owner who is not a member of the HOA was taken to court over a CCR violation (he had a clothesline in his backyard) and the HOA won the case. This is an example of a voluntary assn enforcing CCRs on a non-member property owner. The CCRs are not just a part of the HOA's gov. docs, they are deed restrictions on ALL properties in the s/d. Therefore, ALL property owners must abide by them whether they choose to belong to the HOA or not. When there is no HOA involved, each property owner has the right to enforce the CCRs. In this case the HOA can enforce the CCRs in the interests of all the members of the voluntary assn. I have never lived, nor owned property, (3 different states) where there were NOT CCRs in the deed restrictions. However, until I moved to AZ and purchased my second home here, I'd never been a member of an HOA. Deed restrictions (CCRs) on properties are very common and in many instances there is no HOA. An HOA doesn't come into play unless there are common areas to maintain and in most instances it will be a mandatory HOA.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

DonN (Michigan)
Posts: 357

Posted:

MaryA1 (Arizona)

I am surprised by the ruling you describe. What authority did the voluntary HOA have to enforce the CC&Rs if such authority is not in the CC&Rs? The legal term is that the party must have standing.

A possibility is that the voluntary HOA owned property governed by the CC&Rs. Any owner of restricted property can enforce the CC&Rs against another owner.

Somewhere in the court's opinion, there should be a description of the standing and/or the authority for the voluntary HOA to enforce the restrictions.

Don Nordeen
Governance of Property Owners Associations

KirkW1 (Texas)
Posts: 1,665

Posted:

Don I am surprised that you would doubt the standing of the voluntary association to bring an action. To challenge the position would seem to be a non-starter to me.

Anyone who has something to lose can bring deed restriction actions. This would include the ability of a person in a nearby neighborhood of violation of a covenant would have a negative impact on said person.

Now perhaps there are voluntary associations that are not primarily concerned with promotion of neighborhood property values and quality of life. But I have never heard of such. If the association has the purpose of promoting the neighborhood then they would have a cause of action in enforcement. In fact, it it not unheard of for voluntary associations to come together for the purpose of bringing enforcement action.

All the same, it is also not unheard of for a group bringing such action to name one or more individuals as plaintiffs as well partly to ensure their standing in bringing the cause forth. And if an action is financed by an organization though the organization is not a named plaintiff, isn't it about the same thing as the organization bringing the action?

For instance, the ACLU rarely is an actual plaintiff in any of their cases. Just the same, many people talk of them taking said action.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I suppose a simple way to explain it is that the CCRs come with the deed.

The voluntary HOA's "concerns" would be efforts that deal with all other "soft" matters.

But they could use the courts to get the CCRs enforced.(and so could an indivudual homeowner who didn't like what his/her neighbor is doing)

IMO - the only way is would get sticky is if the HOA held assets (beach, roads, etc.)

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By DonN on 11/26/2008 2:15 PM
MaryA1 (Arizona)

I am surprised by the ruling you describe. What authority did the voluntary HOA have to enforce the CC&Rs if such authority is not in the CC&Rs? The legal term is that the party must have standing.

A possibility is that the voluntary HOA owned property governed by the CC&Rs. Any owner of restricted property can enforce the CC&Rs against another owner.

Somewhere in the court's opinion, there should be a description of the standing and/or the authority for the voluntary HOA to enforce the restrictions.

Don,

I don't recall saying the assn did not have authority to enforce the CCRs. Frankly, I'm sure they did, otherwise I would think the court would have ruled against them. There are no common areas, but, as I stated originally, there are deed restrictions on all properties. Whether the owners join the voluntary assn or not they must abide by these deed restrictions. The voluntary assn, representing all the members of the assn, can enforce any deed restriction violated, whether by a member of the assn or a non-member. The same as any member of the assn can enforce the deed restrictions whether the violator is a member of the assn or not.

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