ChristineP1
Posts: 47
Posts: 47
Posted:
Does the BOD have the right to forgive annual assessment and special assessment because they failed to invoice the homeowner?
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Annual Assessment Not Paid-Did not receive invoice.
Started by ChristineP1 • 17 replies • 3928 views
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GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
No, unless it is allowed in your CC&R's, which I doubt. However it would be proper and fair to forgive any interest and penalties as a result of the BOD's error.
Studies show that 5 out of 4 people have problems with fractions
ChristineP1
Posts: 47
Posts: 47
Posted:
I have no problem with forgiving late fees or interest but the BOD does not want to pursue it.
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
They have a duty to pursue it. I doubt the CC&R's give them the option not to but if they refuse any homeowner has the right to take the person not paying to court or the BOD to court to make them collect. IMO since they are deliberately not enforcing the covenant their D&O insurance wouldn't protect them and they would be on the hook for their own legal fees and any judgment against them.
Studies show that 5 out of 4 people have problems with fractions
TracieS (Colorado)
Posts: 460
Posts: 460
Posted:
Quote:
Posted By ChristineP1 on 11/13/2009 9:24 AM
Does the BOD have the right to forgive annual assessment and special assessment because they failed to invoice the homeowner?
Does the BOD have the right to forgive annual assessment and special assessment because they failed to invoice the homeowner?
Do your documents require that an invoice be sent?
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Christine,
I would suggest taking a look at your CCRs under the article titled "Assessments". This is what mine state: "The Board shall give notice of the annual assessment to each owner at least 30 days prior to the beginning of each assessment period, but the failure to give such notice shall not affect the validity of the annual assessment established by the board nor reliebve any owner from its obligation to pay the annual assessment."
I doubt your CCRs give the BOD the authority to forgive payment of the assessment and/or special assessment for ANY reason. If you look closely at your CCRs I think you will find it stated that ALL members of the assn are required to pay assessments and/or special assessments. There generally are no exceptions to this rule. BTW, I really don't know how a h/o can prove they didn't receive a copy of the invoice.
I would suggest taking a look at your CCRs under the article titled "Assessments". This is what mine state: "The Board shall give notice of the annual assessment to each owner at least 30 days prior to the beginning of each assessment period, but the failure to give such notice shall not affect the validity of the annual assessment established by the board nor reliebve any owner from its obligation to pay the annual assessment."
I doubt your CCRs give the BOD the authority to forgive payment of the assessment and/or special assessment for ANY reason. If you look closely at your CCRs I think you will find it stated that ALL members of the assn are required to pay assessments and/or special assessments. There generally are no exceptions to this rule. BTW, I really don't know how a h/o can prove they didn't receive a copy of the invoice.
MicheleD (Kentucky)
Posts: 4,491
Posts: 4,491
Posted:
Not receiving an invoice is pretty much a moot point.
I have yet to see a single set of governing documents for any HOA that doesn't discuss either "assessments" or "dues," so the homeowner knows that a payment is due and owing at some point, whether a particular association has monthly quarterly or yearly periods.
Seems like a pretty weak argument.
If the electric company fails to send a bill out one month, for whatever reason, does that absolve the homeowner of the debt?
Not likely.
Just pay the assessment and move on. Make a note on your calendar indicating when the assessment is due and for how much and stop playing games.
If they mailed it and it just didn't make it to you, then you still owe the late penalties.
If they neglected to send it (it happens) then they should waive the late penalties.
But either way, the assessments are due. Pay them.
I have yet to see a single set of governing documents for any HOA that doesn't discuss either "assessments" or "dues," so the homeowner knows that a payment is due and owing at some point, whether a particular association has monthly quarterly or yearly periods.
Seems like a pretty weak argument.
If the electric company fails to send a bill out one month, for whatever reason, does that absolve the homeowner of the debt?
Not likely.
Just pay the assessment and move on. Make a note on your calendar indicating when the assessment is due and for how much and stop playing games.
If they mailed it and it just didn't make it to you, then you still owe the late penalties.
If they neglected to send it (it happens) then they should waive the late penalties.
But either way, the assessments are due. Pay them.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Michele,
The real problem here is that the board wants to forgive paying the assessment because the member says they never received an invoice. When the members get wind of this, I can see it now -- half the members claiming they never received an invoice. I wonder, who are these crazy board members!!!
The real problem here is that the board wants to forgive paying the assessment because the member says they never received an invoice. When the members get wind of this, I can see it now -- half the members claiming they never received an invoice. I wonder, who are these crazy board members!!!
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Not recieving an invoice is sort of like not knowing that something is against the law. Ignorance of the responsibility is no excuse, especially if the homeowner has lived there prior to their last required payment date. Maybe she was hopeing that the association either forgot her or that the dues were going to be gifted from now on. Either way, you own what you owe. I would try to negotiate for removal of late fees.
HB (Oregon)
Posts: 143
Posts: 143
Posted:
I would think that an invoice is a courtesy to remind owners to send in their dues. Either way, she KNOWS she has dues and if she did not receive an invoice then SHE should contact someone to find out what happened and make sure she pays (trying to get out of paying is weasily and wrong). If I was another homeowner and found out the BOD was waiving her dues (regardless of the situation) I would not be happy.
The BOD should of course acknowledge that they do try to send out invoices, but that it in no way excuses anyone from paying dues.
Since they normally send invoices, I would offer to waive the late fees, but make it known that the invoices are only a courtesy and dues are owed every year, by every homeowner regardless of whether they recieve a reminder.
The BOD should of course acknowledge that they do try to send out invoices, but that it in no way excuses anyone from paying dues.
Since they normally send invoices, I would offer to waive the late fees, but make it known that the invoices are only a courtesy and dues are owed every year, by every homeowner regardless of whether they recieve a reminder.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
HB,
Sorry, but you, too, have it wrong. The problem isn't really with the member who didn't pay. The REAL problem is that the BOD now feels they cannot collect her assessments because she didn't receive an invoice. Just wait until more members get wind of this!!
Read Christine's message of 11/13 @ 9:41 AM in which she says, ". . .the board does not want to pursue it." "IT" meaning the assessment. At least that's the way I read it.
Sorry, but you, too, have it wrong. The problem isn't really with the member who didn't pay. The REAL problem is that the BOD now feels they cannot collect her assessments because she didn't receive an invoice. Just wait until more members get wind of this!!
Read Christine's message of 11/13 @ 9:41 AM in which she says, ". . .the board does not want to pursue it." "IT" meaning the assessment. At least that's the way I read it.
ChristineP1
Posts: 47
Posts: 47
Posted:
You are correct the BOD is choosing not to pursue. It is from 1994. The property was subdivided and the HOA does not have the record of purchase. Plus the owner only got a Quit Claim deed even though everything was plated. 5 years ago I researched all of the properties and made them aware this property was not included and they made a mockery of me at the meeting. I offered them a notebook with all of the streets and each property on that street along with the lot # and the tax max # and they told me they could look at it on the County Tax site and did not want to have extra paper. Our CCR does state we must send an invoice.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Christine,
So, what you're now saying is that this property is not a part of your HOA although you believe it should be?
A quit claim deed only transfers ownership it does not ensure a clear title. A quit claim deed is used mostly to transfer ownership to a family member, For example, if a single man owns property prior to marriage he may wish to sign a quit claim deed to his wife upon marriage.
So, what you're now saying is that this property is not a part of your HOA although you believe it should be?
A quit claim deed only transfers ownership it does not ensure a clear title. A quit claim deed is used mostly to transfer ownership to a family member, For example, if a single man owns property prior to marriage he may wish to sign a quit claim deed to his wife upon marriage.
ChristineP1
Posts: 47
Posts: 47
Posted:
No it is part of our property and always has been. I think the prior owner was in partnership with another person when he sold it to the present owner in 1994 and the proper paperwork was never filed with the HOA. In 1993 the property was reconfigured and the current owner did not purchase until 1994. I do not see any reason why this sale was with a Quit Claim. It was plated and recorded at the tax office in 1993. This is not a family sale. I am unable to find out anything else over the internet. I will have to go to the assessor office.
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
Christine,
You stated the land was platted. Do you mean by that the land was originally platted as one property as recorded by the master deed? Is this a PUD? It just about has to be in SC. Any alteration to the Master deed should be recorded at the County planing office. Have you looked at the Master Deed on file at County Planing office? I guess it is possible this could be within some city limit, then look at City offices for continuity of ownership. Normally all this splitting up of property must show petition of county or city or both to sub-divide the property. Is there any association records that are on file? Check the association minutes for these dates and see if the board recorded anything.
You may well have to go to the assessors office and should have done this to begin with. There has to be a record somewhere.
What is the current status of this property? If one was made two, then this should be adjusted in the HOA,s registration with the state. I would think this would also be reflected in those records. Is all this part of an underlying bad relationship with the Board. Is the Board operating well and how is the track record? Is all this just sloppy bookkeeping, then an attempt to not address the issue. Where is the blame? I think Glen said if the issue was that the property is s viable property and part of the HOA, the owners are liable for these fees. The Board has to be the one to decide how to collect them. You of course can sue the Board if you like. It all depends on your convictions and the proof you have to convince the judge.
Also remember SC has a law that directs that all cases must go before arbitration, so you have to expect that. Lawyer consult might be the cheapest way to go right now. A good lawyer a must. Tell us more about your association and your relationship to the Board.
You stated the land was platted. Do you mean by that the land was originally platted as one property as recorded by the master deed? Is this a PUD? It just about has to be in SC. Any alteration to the Master deed should be recorded at the County planing office. Have you looked at the Master Deed on file at County Planing office? I guess it is possible this could be within some city limit, then look at City offices for continuity of ownership. Normally all this splitting up of property must show petition of county or city or both to sub-divide the property. Is there any association records that are on file? Check the association minutes for these dates and see if the board recorded anything.
You may well have to go to the assessors office and should have done this to begin with. There has to be a record somewhere.
What is the current status of this property? If one was made two, then this should be adjusted in the HOA,s registration with the state. I would think this would also be reflected in those records. Is all this part of an underlying bad relationship with the Board. Is the Board operating well and how is the track record? Is all this just sloppy bookkeeping, then an attempt to not address the issue. Where is the blame? I think Glen said if the issue was that the property is s viable property and part of the HOA, the owners are liable for these fees. The Board has to be the one to decide how to collect them. You of course can sue the Board if you like. It all depends on your convictions and the proof you have to convince the judge.
Also remember SC has a law that directs that all cases must go before arbitration, so you have to expect that. Lawyer consult might be the cheapest way to go right now. A good lawyer a must. Tell us more about your association and your relationship to the Board.
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
Christine how convenient to leave these other minor facts out when you posted your original question; you gave the impression (at least to me) that this was something current like they forgot to bill them for 2009 and now that the year was almost over just wanted to let it slide.
I'm not an attorney nor do I play one on the internet but there is a statute of limitations on how far back you can try and collect the debt plus if the property owner has a reasonably sharp attorney he could argue that by not collecting or attempting to collect HOA fees for 15 years the HOA broke the contract under the UCC and is no longer entitled to collect. I'm not saying they would win but I'm sure it will be a costly experience to find out which is probably why the BOD has adopted their let sleeping dogs lie approach. If they are truly in the HOA the best thing IMO would be to notify them and try to get them to pay going forward.
As a rule, under the Uniform Commercial Code (generally called the UCC), a contract can only be sued upon for breach of performance for six years after the contracted performance became due. http://www.scstatehouse.gov/code/t36c002.htm
I'm not an attorney nor do I play one on the internet but there is a statute of limitations on how far back you can try and collect the debt plus if the property owner has a reasonably sharp attorney he could argue that by not collecting or attempting to collect HOA fees for 15 years the HOA broke the contract under the UCC and is no longer entitled to collect. I'm not saying they would win but I'm sure it will be a costly experience to find out which is probably why the BOD has adopted their let sleeping dogs lie approach. If they are truly in the HOA the best thing IMO would be to notify them and try to get them to pay going forward.
As a rule, under the Uniform Commercial Code (generally called the UCC), a contract can only be sued upon for breach of performance for six years after the contracted performance became due. http://www.scstatehouse.gov/code/t36c002.htm
Studies show that 5 out of 4 people have problems with fractions
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
Quote:
Posted By GlenL on 11/16/2009 10:31 PM
As a rule, under the Uniform Commercial Code (generally called the UCC), a contract can only be sued upon for breach of performance for six years after the contracted performance became due. http://www.scstatehouse.gov/code/t36c002.htm
As a rule, under the Uniform Commercial Code (generally called the UCC), a contract can only be sued upon for breach of performance for six years after the contracted performance became due. http://www.scstatehouse.gov/code/t36c002.htm
Sorry if there was any confusion on my previous post, the URL is to South Carolina's UCC, I didn't read it all so I don't know if it has a six year limit or not, that was just general information.
Studies show that 5 out of 4 people have problems with fractions
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Christine,
When the property was sold it should still have remained in the HOA. The deed to the new owner should have been the same as the deed to the former owner, in that there should have been mention of deeded restrictions and an HOA. I don't know what "proper paperwork" you are referring to.
When the property was sold it should still have remained in the HOA. The deed to the new owner should have been the same as the deed to the former owner, in that there should have been mention of deeded restrictions and an HOA. I don't know what "proper paperwork" you are referring to.
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