Keeping Record Of Votes for Improvements/Assessments

Does anyone know how long the BOD is required to keep the vote to assess or for an improvement? It has come to our attention that our BOD mislead the members of our association by stating that an assessment for an improvement must be 51% (because they wanted to pave the road). However, upon investigation, the vote necessary to make an improvement/incur an assessment has always been 75% and they lied to the residents saying the majority for an assessment had been changed to 51% (knowing that it had never never changed).

Now, the BOD is stating that the vote is lost and they were not required to save it.

Were there ever any meetings when this was discussed? Some of your answers may be in the minutes.

Is the board claiming that they received the required 75% already? The minutes may reflect that they claimed they received 51%---which apparently was not the correct requirement.

You are talking about a YEAR and a HALF later, this is being disputed?

Have assessments been collected as a part of this process already?

I'd say it was too late. Someone should have spoken up long before this.

But the board should be honest about what happened. The passage count requirement for the motion was given as incorrect.

P.S. What exactly was the count? Did it end up being barely 51% or was it passed over that amount?

The BOD had gotten a quote before they even took a vote of the community (it's questionable if they even got more than 1 bid). They then informed the community that they thought the road should be paved and that it would cost $$$$. The heard some flack from members of the community saying that it had just been paved 7 years ago and that it really didn't need it. They had a road fund (which was money that was saved each year from the dues that went directly to a fund for the road). That amount wasn't enough to cover the costs, so they informed the community that we all could vote on it and how much it would cost. We could either pay the full amount in one lump sum or in installments. Many neighbors were against it, but the BOD said that they would get a vote and that the vote would be 51% (instead of the 75% always used for any assessment previously). They misled the community by providing a document (which turned out to be the vote necessary to change the name of the corporation) and told everyone that it only needed to pass with a 51%. I don't even believe that they got the 51% because no one really asked. This BOD has been very dishonest in the past and no one wants to go against them because there is a fear of retaliation. There are so many things going on in our community that it is hard to go into detail.

Our CC&Rs expired in 2006 and the developer never turned over the authority to enforce the CC&Rs before he went bankrupt. A judge ruled that they had no authority to enforce the CC&Rs, but they continue to mislead the members by never telling anyone about this judgement. Many neighbors just don't want to get involved because they feel it doesn't affect them.

However, now with the economy, it has become a huge issue with the neighbors who can't pay. They have threatened to put a lien on some of the owners who have been questioning the vote and not paid to date.

I know this is a ton of information, but this may be the "straw that broke the camel's back." It may get the neighbors invigorated to see how blindly they have followed these few people who have been on the BOD for almost 30 years.

Oh, sorry....one last piece, the road has been completed for about 10 months, but now they are asking for additional funds because it was not enough with the neighbors who haven't paid and/or in foreclosure.

With all due respect, you would have a difficult time proving your case, I would guess. If the vote was taken a year and a half ago and the paving has been completed for 10 months, it seems that the community was a little slow on the draw for questioning this.

How much was the assessment?

Well, they "disappeared" because apparently there was no reason to keep them beyond their shelf life.

Of course anyone can sue at any time for whatever they want, but having a winning case is something else altogether.

What you may see as "fraud" others may not.

But best of luck to you.

Or maybe the other person doesn't? Who knows? But you seem content to simply select the one as valid that agrees with your position.

Perhaps you could look them up yourself and read them and then you'll know as well!

Again, best of luck to you. Hope it works out.

DarleneL1:
The assesment has been made. People have paid. The road has already been paved. Vendors have been paid. Everyting is done.

How would a lawsuit change what has already happened?
What is the ultimate outcome you are looking for?

I'm not personally looking for anything unless I am going to be required to pay for the homeowners who don't pay.

The homeowners who have been fighting to get information regarding the vote and assessment from the BOD since the beginning are trying to obtain the records and the BOD is reluctant to provide the information (they even said that they don't have it).

The BOD now wants to put a lien on the homeowners who have been fighting for this information and they have involved a lawyer. Remember, as residents, we have 3-5 years to pay. If it was done in fraud, the BOD could be held personally responsible (this was communicated by the homeowners' lawyer who is representing them). True? I don't know....

We as a community are obviously concerned as we don't want to pay additional monies (including lawyer fees) for something that the BOD knowingly did as a fraud. The BOD does represent us, but they lied to us. This has been ongoing since February of 2008. Only now, lawyers are involved and the BOD may want to just settle and let the homeowners who haven't paid and are fighting it to just go without paying. Well, that leaves the rest of us to pay their part!

Now all homeowners, who have paid some or all of the assessment, are concerned because if these owners don't pay, why would the rest of us? This decision was based on fraud because the BOD has knowingly approved an assessment without the necessary 75% vote. The vote just barely (if at all) got the 51% that they claim had been the new total to reach. Only 1 month prior, they said the vote needed to be 75%, until they learned that most of the community didn't want it. Only 1 month later, at the next meeing, did they inform us that they found a new document that stated that the vote needed to only be 51% (it was fabricated from the documents regarding votes for changing the association's name which has been done twice prior). Very confusing, but that's how fraud is accomplished, confusing the homeowners.

We do have assets in the community and they could be sold to pay for the road fund. This community took out a loan to pay the pavers and that concerns us as well.

Darlene,

You stated the special assessment is to be paid w/i 3-5 years. Exactly how were the payments to be made? Are there monthly or quarterly installments or is the requirement only to be paid by the end of 5 years? Depending upon the requirement, any unpaid special assessment should be treated the same as a delinquent assessment. If there are monthly or quarterly installments unpaid, then delinquent notices with late fees attached should be sent. If they remain unpaid then those accounts can be liened and ultimately foreclosed.

Darlene,

You said "it has come to our attention that our BOD mislead the members of our association by stating that an assessment for an imporvement must be 51%. . .However,. . .the vote necessary. . .has always been 75%."

Did you keep a copy of the BOD's letter to the members stating a 51% vote was required? Do you know for a fact that only a 51% vote was received? I don't think it would be cause for a lawsuit just because the BOD lied about the % requirement. However, it would be cause if they did not follow the CCRs and announced it had passed with only a 51% vote instead of 75%. Now that the ballots have been lost I don't know what evidence you would have that the correct % was not received. Is the BOD still trying to collect the special assessment?

Darlene,

The contract to the pavers MUST be paid.

If revenues to pay the bill have not come forward and the bill is due, the board MIGHT have to divvy up the balance due and everyone pay a part of that.

What else can be done? The obligation to pay the paver is NOT negotiable.

What and how do you suggest that the money for the payment be produced for this overdue bill?

Wow. Reel it in a bit. This is getting a tad hyperbolic.

If the BOD is allowed to take out a loan then it's hardly fraud.

And I seriously doubt that what they did or are doing is considered extortion!

Unfortunately, this is one reason why living in a HOA is so bad. You can be liable for any contractual expenses the HOA enters into. You bought into an HOA, you must deal with the good and the bad.

DarleneL1: Just don't be surprised when you get warning letters, then letters from the HOA lawyer with foreclosure papers. You will be responsible for the lawyers fees and the original assessment.

If you bankrupt the HOA by not paying the special assessments, be prepared to get a court appointed receiver who will raise dues to an amount they deem necessary. You can bet they will forclose on your property promptly upon not receiving funds from you or anyone who lives in the HOA.

Good luck.

Hi Steve:

You need to re-read all of my post, this BOD has NEVER had the right to spend any money or assess anything. In 1976, a judge ruled that they didn't have the right to do anything including act as a BOD. The developer never turned over the rights. Then in 2006, our CC&Rs expired by MRTA (Marketable Record Title Act) and they have not revived them. So, they did not have the authority to act on behalf of the neighborhood. We wrote a letter that we would donate the money because we know that the common areas need upkeep, but that we were not acknowledging that they existed nor had the right to assess anything.

So, we will go to court to prove that they should not have spent any money or paved a road without the necessary approval. They acted on their own. We have properties that the community could sell to pay for the loan. We'll see where it goes, but we will not be paying more that we've already spent.

Again, these few people who have acted in privacy and spent money that isn't theirs do not have the right to continually do so and expect the rest of us (who didn't vote) to pay for it. Think about it, can you neighbors just do something you don't want and expect you to pay for it.

I don't know what you know about MRTA, but you need to read the laws (Florida Laws) and see that they do not have the right to incur expenses nor spend money once the CC&Rs and By-Laws have expired by MRTA. The only money they can spend is to revive the CC&Rs (with a vote of 100% of the community now that they have expired.)

HOA's were warned here in Florida before MRTA expired their CC&Rs and almost all of them revitalized them (Florida Statutes tells how to do that) and our BOD didn't do it because they didn't want to tell anyone that there was such a law. They lied and told everyone that the rollover clause cleared them.

Look up the Marketable Record Title Act and you'll see what I'm talking about.

Darlene,
Thanks for your response. I am glad you all have the fortitude to keep pursuing this. It will help a lot of folks reading here and certainly you organization will become stronger.

Let me venture a few observarions.

Don't be vindictive against the people involved. It may be justified but is probably not going to be productive. Remember, they will have attorneys to and if so and they are charging anything against the association call this to your attorneys attention. In all probability you will end up before a judge and be asked to compromise. That is when your dedication to the association is important. You all are going to have to go on getting on after this, try and anticipate what you are need to have in place to continue the association legally. Let your attorney develop these plans and present them to the judge, be proactive, show good faith and intent and show clear records and don't forget to form a list of desires that you and your supporters feel are necessary to make the association whole. As always IMHO

Darlene,
Sounds like you have a lot of issues to settle including this Voluntary members, always a battle over that and understandably so.

Be very careful of what you put in print about the personal qualification of your adversaries. Don't get personal. I think you personally have done an outstanding job. I believe it shows you have the association in front. People will evaluate what you say and do and there is nothing you can do about that except to protect yourself.

There is not a thing wrong in stepping back from the fray and regroup. It is not like there will not be another bus coming down the road. I find it is impossible to stop the process of living in a closed community, you can sit back and rest but the action will continue........all kinds of business has to be addressed, but you don't have to do all, all the time.

I would think we have to be now that our CC&Rs are expired and By-Laws are expired and they have never been revitalized according to Florida Laws. Many neighbors don't know this because the BOD is hiding the facts and just told them that it doesn't matter. Like I said, very confusing and meant to be by the BOD.

Hi Michael:

You probably don't know the MRTA laws. Our association was, believe it or not, both. 10 of the 93 lots were exempt from the CC&Rs from it's inception. Here's the information: http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0712/ch0712.htm

The Reinstatement of Covenants, Conditions and Restrictions

Extinguished By The Marketable Record Title Act

MRTA has caught a number of deed

restricted communities by surprise, serving to extinguish

their covenants and restrictions, including

assessment rights. It is frequently incorrectly assumed

that the fact that covenants and restrictions

may have an automatic renewal clause, or amendment

clause, cuts off MRTA extinguishment.

This process is extremely time consuming and costly. It must be done by a 2/3rds vote of the community and prior to the expiration. You may want to check out the Florida website because I know that other states have adopted the MRTA laws as well.

Thanks Steve for reading any of the information. I know it is too much, but that's typically the case with problems in associations.

I totally agree with you and we're not working with a new President who feels the same way you do. Unfortunately, he is the only new member on the BOD. It takes an act of congress to not only inform the community of the ongoing problems but to convince them of the problems. Again, most feel, if it doesn't affect me, I don't care. Now more care since it is affecting them. Hopefully, this President will work with us to inform the community of the issues in case a real problem arises in the future. Not just a road paving.

Trust me, I hate to see the money spent on lawyers (no offense to lawyers) when we lose both ways because it's our money as well.

Hi MaryAnn:

This is if the CC&Rs have not already expired. Our expired in 2006 (February). After they are already expired, the deeds are unencumbered and now the BOD would be taking away the rights of the land owners and they can file a lawsuit to keep their rights. You need to read the full Florida Statutes with regard to already expired CC&Rs, not ones set to expire.

Just curious, why are you calling her "Mary Ann"?

Maybe Gilligan's Island is on in the background?