Looking for advice on dealing with dissenting homeowners

Hi,

I'm a fairly new board member to the association of my community. We're faced with a long-standing issue with one homeowner that is causing not only the board members pain but also threatening the well-being of the community.

To summarize the issue, our community includes an ungated section and several gated sections. The builder set different annual due amounts for the gated and ungated sections. So from the beginning, all boards had taken the cost maintenance of common area in the ungated section and divided it among all owners (gated and ungated). The ungated sections, which come with exclusive access right to only the residents who live there, would pay the for the maintenance cost of the common area/amenities within their respective gated sections. I live in one of the gated sections and was aware of the different rates before I bought into the community. All homeowners want to pay a lower due, but it's a generic sentiment. We have however, one owner, that had lived in the gated section with most amenities argues that it's unfair for the gated sections to pay for the maintenance cost incurred by the ungated section. For years, this owner bombarded the board, the management company with demands (sent from both himself and his lawyers) to change the by-laws and covenants so every homeowner would pay the same rate. He had even collected signatures from un-assuming homeowners (e.g. simply telling them if they gave him their signatures, he would lower their dues for them... without explaining how). We kept telling him it would not happen without the sections fighting among each other and it would not do anybody any good. But he would not stop and we're running out of ways to deal with him.

Has anyone on this forum run into similar situation? I suggested to ignore him and let him carry out of his threat of taking us to court so there'll be closure. Is it a wise thing to do.

Thanks for any advice.

Chung,

Where I am from, different amenities warrant different assessments or fees. Gated people do have that extra perk by having gates. They cost extra to mainain and operate.. Those in the ungated areas do not have the extra protection of gates. What does this guy and his lawyer use as their argument?

If you did a breakdown of how many units are ungated verses how many are gated, what numbers would you come up with? Changing the covenant by an amendment would mean that all of the non gated folks would have to agree or vote yes to accept more costs for operation of those gates that they don't have access to. What are the chances of that happening? He cannot take you to court on an amendment that is only on his wish list.

Unless you deny the association the right to have a vote on this, he has no case. Do your Bylaws state a petition number that would require the Board to address amendment changes?

Chung,
Unless there is something different in your documents that we don't know about, I see no case in court for him. Judges really hate this kind of bogus claims so unless he has something in the documents that you are not aware of, I'd just let him continue to blow smoke. I hope that he ends up paying your court costs if indeed he gets that far. Texas does have HOA laws so perhaps you should review them to see if you can arbritate before it gets to a full blown court case and who would be responsible for costs.

I totally agree that having different rates can be controversial. Even worse in our case the gated sections has all the amenities the community has to offer within itself (e.g. there is a pool inside this section for its exclusive use and there is another outside of it shared by all, including this section). But it was the builder's idea and the association simply inherited it. We (or this owner) can't force change without owners in the ungated section getting upset. He basically asked us to amend the by-laws so funds used to maintain only common areas accessible to all homeowners (naturally, they're all in the ungated section) will be used to maintain his section. Another gated section took the initiative to protect their interests and came up an amendment basically of the contrary. Now he claimed because there were two contradicting amendments the association is not allowed to use money to repair damaged perimeter walls. I've lived in this community for only 9 months. To me, if he feel strongly about having to pay for other sections, he should simply organize his section to break away from the rest of the community. But he wouldn't. He just wanted money from other sections...

I wholeheartedly disagree with the board taking this to the community to a vote before the homeowner does.

Not at all in agreement with that.

If he wants to take it to the wall, he is free to do so.

I would not in the least succumb to pressure simply because this guy is aggressive and a pain.

Chung,

You said: "So from the beginning, all boards had taken the cost maintenance of common area in the ungated section and divided it among all owners (gated and ungated)." So are we to understand that on top of that assessment, the owners in the gated community are assessed an additional amount for the gates?

IMO, the best way to do this would be to assess the gated community for their expenses and the ungated community for theirs. This way no one is paying for an amentity they cannot use. This may be where the problem is coming from.

With regard to the one member making threats, I would pay heed to what Michele and Ellen have to say. Their opinions make a lot of sense to me.

Chung, I would not wait and see if this blows over; since he is gathering signatures by promising to lower assessments. I would assist him on his endeavors by sending a letter from the BOD to all homeowners explaining how the current assessments are computed and that the BOD had received a request to modify this policy (without naming names) to have everyone assessed equally. Then spell out exactly what it would mean for each section i.e. Sections A, E & F assessments will be cut by $100.00 to $300.00 while Section's B, C, D, G & H assessments will rise by $100.00.

Ask the homeowners if they would be in favor of amending the Covenant's to allow this. Or since I'm assuming that the guy in the gated section with all the amenities isn't prepared to share them with the ones he wants to pay for them; ask if the homeowners would prefer to equalize the assessments at a savings to some but at no increase to others and allow the BOD to determine mandatory usage fees for each section. Believe me when the H/O's know that their assessments might rise, they will make their feelings on the matter crystal clear.

While I agree that it is best to avoid litigation when possible, there may not be another way.

But here is an idea to think over. Explain to him that what he wants will require a change to the covenants and that will take getting 2/3 of all owners to sign on. (This is not 2/3 of the attending members but all owners.) Also, let him know that according to Texas state law there is a one year limit in which to collect the signatures.

Then try to make a deal with him (preferably in writing). Tell him that you will address the issue at the next annual meeting if he will agree to abide by the will of the people and stop harassing you.

At that time put forth a measure to make an official run at changing the Covenants. Of course if all fees become equal, then all people will get full use of all amenities.

As a note, unless the gated areas get something from the non-gated areas, I don't think it fair to simply split that cost among all areas. Now if all people pass through an entrance, then that should be split among all. To be sure though, finding the perfect balance of what is fair could well be impossible.

One thing that you could look into is splitting into a master association with several sub associations. The most likely reason the developer chunked all the neighborhoods together is one of costs. Management fees go down considerably as you get more homes in the association.