BoD Abusing Power - how to handle?

Michelle -

Others, smarter than I, will be sure to chime in here with good suggestions. For a start, I would suggest the following:

1). Whatever you do, DO NOT stop paying your dues/assessments. Doing so will accomplish nothing on your behalf and it can potentially get you in a world of hurt (property liens, lawsuits, forclosure). Despite what you think your legitimate grievance may be, courts have consistently upheld the rights of an HOA to collect assessments.

2). Carefully read (I know it's boring as all get out) all of your governing documents, both the CC&Rs and the By-laws. You need to clearly understand not only what they say, but also what the process and requirements are for changing them (likely to be different for By-laws vs. CC&Rs).

3). Look carefully in your governing documents for a section pertaining to "agrieved owners" or some similar language. If it's there it will likely give you some potential pathways for resolution within the context of your governance.

4). Only once you've done all this, consider banding the four of you together and seeking legal guidance.

Good luck!

Michelle,
Well, it seems your problem is clear enough. Let's just say all your explanation is dead on target. What can you do?

You can contest the Boards actions.
How? First write a letter signed by as many members as you can requesting the Board call a special meeting to explain your issues. If they don't answer you. Get as many people as you can to attend an open Town Hall meeting to discuss your issues. I assume you will get four units attending. Conduct this meeting in a formal fashion and keep minutes.
Purpose: To establish a homeowners group of xxxxxx xxxxxxxxxx of concerned owners in the HOAS that desire to establish a formal relationship with your Board to discuss issues. Elect a contact person to lead the group and approve the selection by unanimous decision. Have this person formulate a letter to your board informing them of your existence. Ask for a hearing before the Board. Decide if this letter should be written by your leader or Lawyer you jointly hire. I suggest lawyer to write letter, let him decide what observations or past actions of the Board should be challenged. Don't retain him, just hire him to do this one thing. Get group back together and evaluate reactions of Board if any.

If you agree all is reality to what you post, you all indeed have an absolute right and obligation to question the actions of the Board. The Board should respond and offer to work together. If they don't play fair, you four take them to court. Get a good lawyer and be absolutely sure of your facts.

I would guess you have a neighbor or two that think they can act any way they want and who will protest. So, probably at the most 2 or three of their group think they know the documents. You make sure your group knows the documents and the law better than their group. They will get the message when you all start to know more about what you are talking about, than they know what they are talking about. (yes, this makes sense)

Having said that, you are encouraged to pick out and toss out anything or all I say, it is up to you. Pick and choose and make it work for you.
Will this work, damn straight, if you all work hard and become a force in your HOA. If you can't go through them, go around them

Michelle,
See what I mean about tweaking of approaching the same problem in a different way. John's advice is sound and I have no problems with his advice.

Good post John. I like the details of what you say.

Michelle: I know your issue is a larger one with the board, but would any of the 4 homeowners be interested in "purchasing" the portion of common area adjacent to their home? Would there be any value in that for them? Perhaps the board/other homeowners would, through the proper legal channels, of course, assign ownership for free and pay to re-draw/rerecord the site map if the cost was less than long term maintenance.

Is it possible that this lack of mowing is a short-term, poorly communicated activity to avoid a budget short fall or special assessment or is it a long-term solution?

You might suggest to your board that you do no carry individual workers-comp insurance and would not be acting in the capacity of volunteer if you mowed. I doubt the HOA insurance would cover you then and it might make it of more interest to the board.

In Michigan, many of the city's and townships have mowing ordinances. You might want to place a call to the zoning officer in your community and complain or have them "emphasize" the responsibility to the board -- of course, any resulting fines may affect you adversely.

Dee and Glen,
Comments well taken and helpful. All these and more must be considered. However nothing will work unless the group and the four in particular change their status as second class citizens. Their rights are just as strong as the Board and the other eight. All this is assumed the OP is right on the money about the situation. If this is true, the only way out is in the documents and they MUST know them and have the conviction to do something.

My documents would require a 100% vote to partition the common property. Probably another vote of 100% to sell any of it. Never get that in our 65 unit condo, and I am sure there are covenants that are going to be hard to end run in an HOA. But who knows, change will only come with knowledge and determination, right now I don't think the 12 have a good sense of what they are doing, only what they want to do.

Thank you all for the great advice. I believe we will start with John / Robert's advice and approach the board. I am also going to try the suggestion of calling the City on the association when the grass reaches a certain height (as our city does have ordinances on that).

Beyond not following by-laws, the BoD is a bit shady in other regards, such as never having our finances audited (by-law requirement) in the 5 years we've been in existence. When I asked for a current budget, I was told "it is not important." I did not feel that was an acceptable answer, so I protested and submitted a formal request (per the by-laws) to review the books of the association. Took me > 3 weeks to be granted an opportunity. Then, they made me meet with the entire board at the City Hall, where they watched me like hawks as I read through the books. They also tried to charge me $60 per hour to review the books because it was "taking up their time." I refused (as our by-laws state only a management company, which we don't have, could charge a contractual amount). Don't ask me where they came up with the $60 figue...I think they were just trying to be difficult in the hopes I would go away.

As an engineer by trade, I am used to following the process, so it is extremely frustrating when the BoD basically throws the rules to the wind. Additionally, I own another property (condo) in the same city. That property has nearly the exact same by-laws as my community. I used to be a member at large on my condo's board, so I feel I am quite knowledgeable with the by-laws and how a BoD should operate, which probably upsets the BoD more (when I point out their improprities.)

It all boils down to $$. I really believe that when they bought their homes (we were a new development), they did not read the by-laws and did not know what they were getting into. Now that they see there are more expenses then they were probably prepared to pay, they have banded together to push their own agenda. The 8 homes don't want to spend money on maintenance because they claim they don't see the common elements or benefit from them (even though one of the elements is a circle in the middle of the court). They look at the short-term solution, instead of the long term and that their lack of maintenance could lead to an eyesore that sets the tone for no one wanting to move into the community. However, the majority will ramrod a proposal through if they stand to benefit (such as purchasing an air compressor so they can blow out their sprinklers).

At this point, I don't think the relationship between homeowners could get much worse. Meetings invariably include shouting matches, finger pointing (literally), and downright disrespectful behavior. They don't refer to us by name, it is just "You four" or "Those down at the end." If the market in MI weren't so bad, you can be sure my home would be on the market!

MichelleM4,

First, is this 12-home community a mandatory HOA? Are there Deed Restrictions (Covenants, Declarations, CCRs, CE&Rs, whichever)?

If so, what is the purpose of this HOA, except to maintain these two common areas? Is there any enforcement of deed restrictions on the individual properties? Why are there dues, if the HOA chooses not to maintain these common areas?

Other threads (including my own HOA's situation) about rogue BoD's disregarding their duties and obligations under Bylaws and Declarations usually involve blind submission or homeowner apathy in larger communities. In contrast, you describe a situation in which a majority have chosen to disregard obligations that they feel benefit only a minority.

I am trying to visualize the plat layout that lead to this situation. I imagine a lane with no outlet, ending in a cul-de-sac circle, with four houses around the circle, eight more houses along the lane, and a grassy area behind the circle (perhaps wrapping around the four back yards). Is that right?

If this is truly a situation of divergent interests, why not promote the dissolution of the HOA and termination of Deed Restrictions? The Four homeowners who feel their property values and/or quality of life may be impacted by the condition of the two common areas could form their own HOA.

I am not saying that you are necessarily wrong to want them to simply comply with the Deed Restrictions, but that may be impractical to enforce, and treating this as an issue of divergent interests may be more practical (as well as justifiable in its own right).

Perhaps The Four should offer to buy the "berm" and the circle from the HOA for $1. This would at least put them on the spot to declare whether or not they really have an interest, instead of just taking advantage of these areas while asking The Four to be responsible for the cost. If they take the position that there is nothing to sell, because it has nothing to do with them, or simply ignore the question, then there may be other steps that you can take unilaterally.

I think the other suggestions in this thread represent very good advice. You Four should definitely approach each of your eight neighbors and see what they say and if there is a possibility to work things out. You should also get some legal advice, after you've researched your governing documents and relevant State HOA laws and non-profit Corp laws. (Is your HOA incorporated?) But when you get done, you may find it's still four "with" these common areas against eight "without", and any legal recourse may be too expensive and risky. And beware of lawyers who would just like you to hire them for something that won't end up benefitting you.

As do ours. We couldn't sell to a homeowner and a homeowner couldn't purchase for any amount of money.

I think that you could show some monetary damages if you were to now have to start handling the upkeep of the common areas.

Michael, What are the state's requirements todissolve a non-profit HOA? Texas law must be followed and probably yhe procedure to dissolve is in the documents. Our are.

I would expect the rerason to have the HOA is this instance is is harder to get rid of it, than to keep it and a lawyer would be required aand who do we expect would be told to pay for that? I expect the four owners. This mess is going to take time and energy to fix. All twelve better start thinking about the long term property values and sit down together and do the right thing. What ever that is.