Ignoring CC&R's & Law

Started by SamS • 6 replies • 1660 views

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SamS (Hawaii)
Posts: 6

Posted:

When you are a member of a board and the only one who objects to an action you can be overruled. We have a situation where the board voted to start a $50,000 project without checking the CC&R's or State Law first. I don't operate that way so I checked on my own. The project replaces a part (not for safety) of all 150 units which during the motion was called a common element.

My checking revealed that both our CC&R's and our State Law outlines that this part of the owner's unit is their own property, not a common element.
When I brought this up at a discussion after the project has begun (about 15 units are finished) the most concern was over the money spent purchasing the replacement parts and it concluded that they will still continue the project.

Now one of the owners is talking to other owners about it and objecting to paying out of AOAO general funds. I feel I could be liable and have been trying to change some minds. They are not changing so I am considering resigning but would rather not.

Any opinions on this?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Sam,

If the project is being undertaken illegally and a member chooses to take the board to court over it, even if you have resigned you will still be held accountable -- if you also voted to go forward with the project. Bottom line: the CCRs and state law should always be checked first!

BTW, exactly what does this project entail? Are all units of the complex affected and how much money is being expended?

MicheleD (Kentucky)
Posts: 4,491

Posted:

IF you voted FOR the project.

If you voted AGAINST it, and are on record as having voted against it, then you may have no concerns.

I would make sure that the record reflected my vote.

You don't have to state WHY you voted against it.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Perhaps your board felt that it had the power to do this repair. The word "may" gives the board permission to launch activities and campaigns.

Just because a certain thing is the responsibility of the owner does not preclude the board from doing the repair, if it is allowed by your documents.

SamS (Hawaii)
Posts: 6

Posted:

I abstained from voting as I wanted to know more. The project is not a repair it is a replacement. We are not having problems with them. A board member likes the new style. In 90% of the units the bathrooms have drop ceilings, made of acoustical panels set atop a thin, metal framework. The framework is attached to the inside of two inner & one outer wall, but are not considered load bearing nor any part of the building structure. They are decorative and some owners have changed theirs with no objection.

The Association only requires some kind of open access .. (any kind) to the pipes above the ceiling. The project, as I said above, involves approximately $50,000.
Since one owner, who doesn't like the new product, has objected to their own ceiling being done and feels the board should not change any owner's private property I have concerns. I thought it reasonable to pause the project until the issues are solved. I seem to be the only one with this viewpoint.

DennisT (Ohio)
Posts: 109

Posted:

There may be another part of your CC&R's being violated here too but this one would be a bit more subjective. A lot of documents I've read restrict the board to funding projects to maintain and repair. Replacements that are not repair-oriented and upgrades will often require a vote of the membership to move forward.

The example I often use is that we had a large grassy common area. The Board couldn't unilaterally decide to put in a swimming pool or convert it to playground because that would be a significant departure from its previous use and funds would be spent to upgrade the area. Now, the Board could propose to covert the area to a pool but it would have to go to a membership vote.

If you have such a provision in your documents this might be something to lean on as well. Of course the problem is that this can be subjective. Someone will argue that this is just maintaining what's already there. IMHO the current ceiling is working fine, its not near the end of its useful life, and it poses no health or safety issues that have to be rectified. The change is purely aesthetic so I would consider it to be an upgrade. I've got to believe that more than a handful of your neighbors would have no interest in having this done.

Unfortunately if the board votes to go forward there's not much you can do as an individual board member or unit owner other than the nuclear option. In most cases association documents give all parties, including members (owners) the right to pursue remedies at law (i.e. in court or arbitration) for violating the CC&Rs. That means you need to find out how many of your neighbors are in agreement with you and contemplate filing for an injunction in court. The problem is by the time that's all said and done you and the association could spend almost as much as if the project had gone ahead anyhow. You might be able to get a lawyer to represent you (in your capacity as a unit owner) and other similarly feeling neighbors and have him send a C&D threatening to pursue the matter in court and outline the grounds on which such a suit will be filed. Of course if they call your bluff you better be ready to file. You also have to continue living with these people.

DanielH1 (California)
Posts: 482

Posted:

I suspect that nothing will come of this.

It is almost certain that the homeowner won't generate enough interest and certainly wouldn't pay or convince anybody else to pay for a lawsuit. The uproar will probably die down in a few weeks.

Although I don't have the specific info, I suspect that your Board could offer up a fairly good defense of its actions. Associations generally can replace/repair a homeowner's property if that property somehow affects the Association (even if only its appearance or to assist with maintenance or whatever).

Although the offended Homeowner may imagine that they'll come up with some technicality or procedural error to skewer the Association in court, that is mostly a fantasy.

The time to attack this plan was when the Association was electing directors or approving the plan and, definitely, before construction began.

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