Board Resolution to Grant Easement

I am a Director on a 3 person board of a 20 member HOA. We decided by majority vote of the membership at our annual meeting in January to participate in a program through the airport authority to have sound attentuations installed in our individual units. In exchange the owners would be required to grant an avigation easement to the airport authority. Since then we have had monthly board meetings where this has been discussed, we've exchanged Q&A with the airport authority and our members to address any concerns and we've retained an attorney to review the easement, agreement and our governing documents to insure that we are acting legally on behalf of the HOA. The attorney advised that we should record unanimious consent (though not required) of the intent to grant the easement as our CC&R's require ALL owners to sign the paperwork. Short of that we were advised that the board, by majority vote could grant the easement on behalf of the HOA and that this should be recorded with a Board Resolution. This was not recommended. Up until now we have not heard from a single owner indicating they would not be willing to participate. Today the Board received a letter from the President of the Board that she would not agree to participate. We are 5 days away from the meeting with the airport to sign the easement. My questions are this: 1. How do we address questions about why we will not be participating in this program after 9 months of planning, gathering deeds, hiring attorney's etc? 2. Is the Board allowed to disclose this information to the membership? Is the letter a record in the minutes? 3. Can the President be held responsible for the loss of this opportunity (approx $300,000 in improvements to the property)? What is her responsibility, considering she has been involved in the process for this whole time frame and we have had the documents for a few months now. It seems unusual that she would notify the board in writing only 5 days prior to the deadline. Any advise would be appreciated.

Gerald,

To clarify, there was a majority vote (as required by the CC&R's) at our annual meeting. We've since then sent out consent forms to be signed by all owners to grant participation in the program so we have this as a board record. To override a less than unanimous participation the Board has the legal right to grant the easement by MAJORITY vote, so we can still move forward with that option, without the Presidents agreement. My question still stands as what can we and can we not disclose to the HOA members regarding any reasons we will not be participating in the sound attentuation program. There is question about the Presidents intentions throughout the process.

KathrynW,

I thought the attorney recommended unanimous owner consent (though not required) but to comply with the cc&r's by getting all owners to sign the paperwork.

So, where are you at in the collection of the consent forms or paperwork from the owners, how many do you have?

If there is a lack of return paperwork by the owners, I would not feel comfortable in overriding a less than unanimous participation as the cc&r's require.

As for what you tell the owners, IMO, communication should be similar as that to the airport authority.

Something to the effect that under professional councel from the association attorney, unanimous agreement by the board to grant the easment was permissible, though not advisable because your covenants, conditions, and restrictions require that all owners sign the paperwork. Even though a majority of the Board agrees, unfortunately at this time, neither unanimous consent nor the return of signed paperwork from the owners has been achieved. Therefore, the board can not grant the airport authority to install the sound attenuations on individual units.

I have to be honest, without knowing all the details, I agree with the decision of the President if ALL owners have not signed paperwork that shows their opinion EITHER WAY (yeah or neah).

Best of success!!
GeraldT1
NNJ

Kathryn, either you need to go door to door and get written approval from every owner or else forget it. Since one owner has already indicated they are opposed, unless they change their mind the rest don't matter.

How are you improving your community to the tune of $300,000+? Is that the amount of the airport's FIRST OFFER for getting an easement from your HOA? Have you have factored in the decreased value and decreased appreciation of the properties? If that decrease was $15,000 per unit you would not be improving the HOA's finances but you definitely would be decreasing the quality of life of the owners.

We have received signed consent forms from all owners except one in Europe (which we are expecting) and our President, who wrote a formal letter to the board stating she would not sign. We are not in a position to negotiate with the Airport Authority on this program. Basically the Quieter Home Program provides free upgrades to reduce sound levels in the homes (new windows, doors, insulation and air-conditioning) in exchange for signing an avigation easeement that the homeowner won't sue the airport for noise. Our condo is not in the flight path, and due to geographical restrictions will never be. 600+ homes have particapated in the program so far. All new home construction in the surronding areas are required to sign easements to build. These areas (including) ours are very desirable even with the airport near by. These improvements would only increase our home values, not decrease them. I would like to proceed with a vote of the board to grant the easement on behalf of the owners for the good of the community. According to our cc&r's this can be done legally by a majority vote of the board. How do I proceed to intiate this to be done by 9/12 - our deadline with the airport?

Gerald,

Thank you for your reply, it was very helpful. To answer your question, regarding the unanimous consent (or reply yeah or nay). This is only required if that is the route we're taking. If we choose the path of a majority board vote, we don't need anything from the owners. Though the more recorded support we have the less likely we would face problems down the road. The president has called a special meeting for Monday where this will be adressed and I will call for a vote to grant the easement if necessary. Thanks, KW

I agree with Roger.

In addition you may wish to speak with your insurance agent and ask him/her to get a position statement from the underwriter regarding the D&O coverage on this issue, in the event the board goes in a different direction, and there is a law suit.

KathrynW,

You can't sue the one holdout, or the board president for that matter. You can only change the by-law, or cc&r, as a community. prevents 98% in favor of something effecting an action. All the work getting to this point and 98% of the community is in favor, my gosh!! My HOA/COA would never get anything accomplished under that set of criteria.

Sounds to me like the Pres. is being reasonable because he/she called the meeting for Monday. The board needs to act, one way or the other.

If you wish to do a little CYA, state at the vote meeting, " I'm in favor of the installation of the sound attenuation installation because I believe it will benefit the community to the tune of $300,000.00 of improvents. However, my vote for approval is also based upon the overwhelming response from the community where 97-98% are in favor as well.

I'd listen to advice of Roger and the other guys and contact the insurance agent pronto, explain the situation in relation to the by-laws and get something faxed to you monday morning.

Best of success, and please post the result!!
GeraldT1
NNJ

Kathryn, reread your first post.
".. we've retained an attorney to review the easement, agreement and our governing documents to insure that we are acting legally on behalf of the HOA. The attorney advised that we should record unanimious consent (though not required) of the intent to grant the easement as our CC&R's require ALL owners to sign the paperwork. Short of that we were advised that the board, by majority vote could grant the easement on behalf of the HOA and that this should be recorded with a Board Resolution. This was not recommended."

I believe the attorney gave you good advice. Once the Board received advise from an attorney and ignores it the individual Board members really could be at risk. They advised you should RECORD unaninous consent and did not recommend only Board approval.

Why do you think the airport wants the easement? Do you think it might be so they can have flights over your area in the future? And if there are owners who have not given their approval for this, do you think there might be suits against those who gave the approval without their consent? The hold out owner has every right to do so. Get real! The Board would have no basis for a suit but the homeowners who do not provide written approval would have a very strong basis for a suit.

Gerald, You asked for an update. The Association received written consent from all the owners, except the President. After further discussion with our attorney we chose to vote to grant the Easement on behalf of the Association. Geographically the airport would never be able to change their flight path over our property, nor expand. They are at 90% of air traffic capacity with no opportunity to physically expand. The airport authority has been researching new airport sites for the last few years. The airport has agreed to modify their documents to recognize the board as an additional Grantor of the Easement. Our CC&R's legally allow for this. So, for the moment we are moving forward.

Gerald,

I thought you'd want to hear that the end result was even better than we hoped for. One hour before the meeting with the airport authority the President changed her mind and agreed to sign. Much better way to go with 100% approval. Thanks for your advice and support! Kathryn