Fiduciary Breach

Started by JohnS30 • 10 replies • 2399 views

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JohnS30 (New York)
Posts: 1

Posted:

Does anyone have any experience with punitive damages for Fiduciary Breach.

After years of requesting that my President and his father stop dumping road debris near my property they refuse. If I request that they stop dumping and they know that this causes me distress and does so anyway are they in Fiduciary Breach?

TracieS (Colorado)
Posts: 460

Posted:

Are they dumping NEAR your property or ON your property?

MicheleD (Kentucky)
Posts: 4,491

Posted:

And have you "told" them, or have you sent them, in writing, a "cease and desist" letter, that also indicates you have sent copies to an attorney and the local zoning enforcement officer?

I don't know if it's a "fiduciary breach," (do your covenants say, "no dumping trash near your neighbors' lot"?), or if it's simply an illegal dumping activity.

If they are doing it personally, and not in their roles on behalf of the association, there shouldn't be any connection at all.

Generally, (and this really will vary with each jurisdiction) there are strict laws regarding dumping of trash.

If they are violating those laws, then the appropriate thing to do, after requesting in writing that they stop, might be to drop the dime on them with the local officials and leave the president's status with the association out of it.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Your comment of "dumping road debris near my property" leads me to believe they are not actually dumping it on "your" property.

Do your covenants or town ordinances have policys against piles on road debris on private property?

If no: Unfortunately you have no authority to tell them what they can and cannot do on their own property. Without more details, it sounds so far like your outa luck.

MaryA1 (Arizona)
Posts: 7,043

Posted:

John,

I, for one, would need to have more info b/4 I can comment:

1) is this "road debris" the resp of the assn to get rid of?
2) exactly what is "road debris"?
3) where, exactly is it being dumped?
4) would this "dumping" be considered illegal by your city/county?
5) doesn't your community have trash pick-up services?

Even if the dumping is not being handled properly, IMO, it would not constitute a breach of fiduciary duty. Fiduciary duty means doing what is in the best interests of the assn. I cannot understand how dumping road debris would enter into that.

Since you are wondering about punitive damages, I must ask, are you considering bringing a lawsuit against the Pres and his father? Just because an action of a board member causes you distress doesn't mean that action is illegal or wrong.

TomJ6 (Florida)
Posts: 3

Posted:

It sounds like John that you are a target of harassment. It seems the road debris is being used as a tool.

Was there anywhere else that they could have dumped this?

Are there any pending problems that would lead these people to retaliate against you?

What is the severity, is it distress or is it fear?

I wonder if MaryA1 is wrong because these 2 people acting as board members also have a Fiduciary responsibility to you.

Fiduciary Relationship and Responsibility
The members of the board of directors and each officer of the association have a fiduciary relationship with the members of the association. This fiduciary relationship imposes obligations of trust and confidence in favor of the corporation and its members. It requires the members of the board to act in good faith and in the best interests of the members of the association. It means that board members must exercise due care and diligence when acting for the community, and it requires them to act within the scope of their authority.

KirkW1 (Texas)
Posts: 1,665

Posted:

As I was first reading this, I thought this has nothing to do with fiduciary duty.

The president is probably guilty of illegal dumping, and may be guilty of harassment. But this is not a fiduciary issue unless it has something to do with the HOA itself.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Tom,

What you posted regarding fiduciary duty is right on, EXCEPT it does not apply to the members -- only the assn. The board has no fiduciary resp to the members per se.

Regarding the issue of this post, it regard a board member and his father -- the OP did not say 2 board members. Also, it has not been established exactly where the dumping took place, and whether it was even the HOAs resp. to dump whatever was dumped and whether the dumping was legal or illegal.

IMO, before anyone can make an educated guess as to whether or not a breach of fiduciary duty has occured more info is required of the OP. With the limited info we have I certainly don't know how you can conclude the OP is a target of harassment.

TomJ6 (Florida)
Posts: 3

Posted:

Mary I am enjoying your response, you are very educated. I have a similar problem in Florida that John has in NY.

It seems this person asked for years not to have debris dumped near the property. To respect the homeowners rights alternatives could be met easily. I have had issues with board members and feel targeted.

What if the deed restriction prohibit storing materials or dumping?

It this person has asked for year to stop an they don't , how could this not be a harassing act?

What needs to be done to link harassment to a board member?

Is intent to cause distress enough?

Thanks Mary Please respond

MaryA1 (Arizona)
Posts: 7,043

Posted:

Hi Tom,

Thank you for the very nice compliment.

As I said earlier, there is a lot of info we have not been given so it's very hard to respond to the OP's problem.

If the debris was dumped in a "no dumping" area that would most likely be a violation of city/co ordinances. Also if the dumping was in violation of an HOA covenant, the board member should certainly know better and his violation noticed accordingly. But these are things we don't know! We also don't know how close to the member's home the debris is being dumped. And we don't know if the dumping is being carried out as an action of the HOA or if the Pres is dumping his personal debris.

As for harrassment. I suppose that could be claimed if the dumping is in violation of the HOA docs or a city/co ordinance. I think this would be a hard claim to prove and you would certainly need substantial proof to bring charges against the board member.

Sadly, there are some board members who take their "powers" to another level. These are the ones who should be targeted for removal and certainly not voted for in the next election. I'm sorry to hear you have had problems with these type board members.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Because John has not answered any of our questions and concerns about where the dumping is occuring, I think that he has cooled off a bit. We have no idea who owns the property so I would not make any call on this. Is this a breach of Fudituary Duty? I'd say that the President and his son are just plain taking advantage of a place to dump their stuff. Do we know what kind of debris? NO! Perhaps it is HOA cleanup? Maybe it is outside of the HOA? Is it harrassment? I hardly think so unless there have been verbal communications between both parties. Looking at the wrong person crosseyed is called harrassment---by some, but that is pretty far fetched.

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