President of HOA is Viloating the Bylaws

Started by DanielleT • 17 replies • 1739 views

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DanielleT (Montana)
Posts: 5

Posted:

I have a question regarding my HOA. It is written in the bylaws of our HOA that if there is any change to common elements it must be approved by the board, and a vote must be taken and 2/3 of affected Unit owners must agree to the change. Specifically, this is how the bylaw reads:

"Nothing shall be altered or constructed in or removed from the common elements, and no easements, liens or encumbrances placed on the common elements, except upon written consent of two-thirds of the aggregate interest of the Unit Owners affected by such action."

So here’s my issue, the president of the HOA happens to be my upstairs neighbor. The president of the board decided she was going to add onto her deck (which affects the common grounds) and go figure, she got approval from the board. However, no vote was taken by unit owners to approve or deny the request. Well I noticed the building materials outside yesterday and emailed them last night saying I never voted and I don’t see how they are allowed to build the deck. I never got a solid answer telling me why they had valid reason to build the deck, the only reason they kept giving me was "the board approved it". Well today they are outside building away on their new deck.

Is there anything I can do to enforce the fact they disregarded rules outlined in the bylaws? Thanks for any input I can get.

GlenL (Ohio)
Posts: 5,491

Posted:

Yes but it won’t be easy. There are a few things that come to mind; first I would contact the local Zoning Board immediately, deck work, especially on the second floor would more than likely require a building permit, so I would ask for an inspector to visit. Next you can file suit and ask the court to order the new structure removed, this has the draw back of being expensive up front but if you prevail and ask for it you could receive your attorney’s fees as part of the judgment. Finally you can gather your neighbors together and recall the Board since they are willing to abandon their duties for one of their own.

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MaryA1 (Arizona)
Posts: 7,043

Posted:

Danielle,

My questions is: How can this person add onto her deck if she's on the second level and what common area would be up there? I don't live in a condo so I'm having difficulty envisioning this.

DanielleT (Montana)
Posts: 5

Posted:

The deck is only accessible from their back door from the second story up. The deck is supported by 4*4's that anchor into the lawn that is shared by all unit owners. However, the deck itself is not shared and cannot be accessed by all unit owners. Kind of hard to explain.

DanielleT (Montana)
Posts: 5

Posted:

Thanks for your reply! My intention was to contact someone, but I wasn't sure who. She because she is jut having her husband and his friend build the deck. From what I know, neither of them are contractors and I very highly doubt they have the permits to build a second story deck. I think for now that will be the best thing for me to do to try to prove my point that what they are doing isn't OK. Other unit owners have tried to do similar upgrades to common grounds and have been turned down, or have been required to have an contractor with insurance do the work so the HOA doesn't face any liability.

My boss is an attorney, so I will get his opinion. There is a clause in are bylaws that states any disputes go to arbitration, which I have a general understanding of, so I will let my boss know and see what needs to be done. Thanks again for your reply, I will contact the zoning board.

JackB8 (Virginia)
Posts: 141

Posted:

Danielle Please realize folks post here because they want to help others who are having problems with HOA activities. An important aspect of helping (participating in this forum) is knowing whether or not the help "helped". Will you please let us all know, even me who knows not enough to help, how all this ended up?
Jack

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Danielle,
One thing about Condos, they all pretty much follow some basic terminology.

I have a concern in that you keep referring to this deck as common area. It is in effect (all things equal) limited common area, and this president does not have the right to do anything to Limited Common areas either. I would suspect you need to get all your documents together and the management should have the original documents along with all the exhibits. The exhibits are important as they define the physical properties of all the condos and they will describe this area as limited common, I'm pretty sure. Also in your document there should be a clause concerning partition, see what that says.

In some condos there is limited common areas beside decks and balcony's, and one is a storage shed. Most allow for the inside of the shed to be changes to accommodate the desires of the assigned owner, but they are not allowed to partition any kind of common property nor can they individualize anything about the outside. I suspect this is what they will try to hang their hat on, that changes are allowed in some other common areas. In any event it is a Board decision not a members vote unless you want to amend the documents. But, the fact remains in spite of this, for a change such as you are describing and how the work is being done , it is just a foolhardy move on the Presidents part. Is there a building permit posted, who's paying for this, was a formal application made and comments allowed. I agree with the others, they are doing wrong exposuring the association to liability.

JonD1
Posts: 2,350

Posted:

Do you plan to live on this property for an extended period of time?

And if so calling in the zoning board or contacting an attorney seems to you to be the right road to head down?

IMO once you make those moves hard to pull back and rethink those actions.

In the event those building the deck don't have permits (if they are required) it might result in some problems for them. In the event they do have the necessary permits that might be no rpoblem for them but perhaps a problem for you.

Unless you have no desire to have some level of decent relastionship with your neighbor upstairs then call whomever you wish. However I would carefully consider the consequences beforehand.

How many units are there in your property?
Have you looked around to see if ANY other decks have been extended in a similar manner?
Perhaps attending a Board meeting to raise this issue before you call in "help" might be a more thoughtful way to go for those walking over your heasd each and every day.

Good luck.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

JonD,
I can understand your concern for the future (and present) well being of the association, and I agree your issue should always be considered just about anytime a condo owner is going to question the Board or the actions of their neighbors.

But any deck, balcony, or any other structure that is designed to bear weight in a building or outside a building to that matter, must be designed to engineering specifications. We had an event near here last summer when this new townhouse condo, with balconies apparently much like the described, gave way and injured several people. The case is still in the courts, but someone is responsible. Several years ago, one of our units at my condo hosted a party on the third floor. Everyone crowded on the balcony and someone noticed the balcony deck was pulling away from the building structure. No harm done but engineers were brought in and found this particular balcony did not meet code due to faulty construction.

I really think to allow a couple of happy homeowners to extend a elevated deck is foolish and dangerous..........neighbor or not. I did volunteer maintenance around my place for years and I would never touch a job like this..........not that I'm an expert, but, it is a job for an expert, if it was necessary, this is plain foolish, and it all probability is not condoned by the documents.

DanielleT (Montana)
Posts: 5

Posted:

JackB8:
All of this started just yesterday, and it being the weekend I haven't really had much time to really get anything figured out. Other than emailing the HOA board, I haven't really been able to do a whole lot. The president of the board (my neighbor) has still yet to email me back and answer my question, but so has everyone else on the board.

JonD:
I have definitely taken this into consideration. We are both in college and don't plan on selling until after we graduate, which unfortunately, is another 2 years away. However, this is not the first issue we have had with them as our neighbors. I am not sure how many units there are in total, but no more than 150, it might be in the bylaws but I don't remember. It's a rather small association.

RoberR1:
I couldn't agree with you more. I think her having her husband build a deck for them is absolutely ridiculous, and have heard of the same issues you have brought up. They have two small children and hopefully they don't find out the hard way that they should have it certified and built buy a contractor. Technically, I have been told repeatedly that my back patio are is considered common grounds, and therefore there upper deck shouldn't be any different (even though I could never get up there). My issue is in order to add on the addition to the deck they have added 4 more poles and concrete blocks in the ground in order to extend the deck. In the picture it is the deck that was standing prior, the extension of the deck wraps around the other side of the building.

To All:
I tried attaching a picture of the deck in question but it says it's too big, even though it's only 20kb on my computer. Also it clearly states in the bylaws the requirement of having an architect/engineer approve everything. I haven't brought this up, but I highly, highly doubt any of this has been approved by someone certified to do so.

I have spent most of the day speaking with other unit owners about the situation, and from what I can tell there is a general lack of care from most of the other owners. Our board just went up for re-election and not a single person opted to be elected, nobody wants the job. Thus, all of the current board members are remaining on the board for the next year. I would really like to call and have someone from the city come out to make sure they have permits and that everything has been certified. But at this point I'm not sure what it would accomplish, other than making them even more irritated with me. However, even if someone else calls they will still most likely assume it was me because to my knowledge no other owners have brought up the issue. With lack of support from other unit owners, I don't know if I have the time and energy to pursue something like this. At this point the deck is already half way built, and so far with no response from the HOA I'm not sure what else can happen. To my knowledge every other deck that is on existing buildings has never been added to.

Since the deck is already being built I'm not really sure what there is to do. It's not really the deck I'm mad about, if they want a bigger deck they can have one. I am mostly irritated with the fact that every letter sent from the HOA preaches "the bylaws state" and on and on. Now when it comes to one of the board members following a bylaw, it is completely disregarded...what a bunch of BS

GlenL (Ohio)
Posts: 5,491

Posted:

Danielle, the deck would be considered a limited common area, meaning it is a common area but for the exclusive use of that unit. I understand about maybe not wanting to get involved but she is putting not only your investment in your home at risk but your safety as well. God forbid that you are out enjoying your deck or patio if this thing should collapse. Or I should say when it collapses because if they are building it without the proper footers underneath the columns, I would bet it won't last long in your Montana weather.

Then there is the issue of insurance, if or when the deck collapses and if people are hurt you can expect not only their insurance (if they have any) but the Association's insurance to refuse to pay because of the improper construction. Then anyone who is hurt would quite naturally sue the Association and all of the owners could be on the hook to pay any judgments against the Association.

Check out this web page from the University of Minnesota on footers:

http://www.sustland.umn.edu/implement/deck_footings.html

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RobertR1 (South Carolina)
Posts: 5,164

Posted:

Danielle,
I hope it is clear to you that we are giving opinions here on this site. We don't know what is going on out there. Certainly, I would hope you have some kind of photographic records of this work in progress and a before picture. What exactly are your prior issues with your Board. I am surprised no one has replied to your inquiry. Your boss might be an attorney but maybe he doesn't have the expertise to see this through. Keep records of all this stuff and make that trip to the building inspectors office with your pictures. I would also believe a deck like this would have to be tied into the building, which would require that siding and sheeting be removed to get access to the framing members of the building. I would also have a letter typed up for posting Monday to the BOD that would be registered and certified.

JonD1
Posts: 2,350

Posted:

Danielle:

I had suspected you had less than an ideal relationship with your neighbor. Or you would simply have asked them what they were doing.

Also you never answered my question. Have any other decks on the property been extended? Have you looked at all 150 units or 75 upper units?

Or will this be the one and only? Not hard to determine if you walk out and ask.

We have allowed unit owners to extend decks on our property for many years. Doubling the size of the original decks. With specific size and details by an insured contractor.

IF the Board or President has allowed this project to be done by a unlicensed, uninsured, owner without permits (if they are required) that would be wrong.

But without the details tough to determine.

Building a deck or in this case modifying a deck is not sending a rocket off to Mars. It requires some level of ability not that rare but that would be easy to determine from the work doen and the finsished product.

Do they have the required permits? Easy, ask the building inspector's office.

Do they have insurance to perform this project? Easy, ask.

Is the husband qualified to do this type of work? ask.

Before you decide it's being done improperly get the information you need to make that determination.

Take a walk around your property and see if any other decks have been extended.
That should take little time as a first step.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By JonD1 on 04/18/2010 12:04 PM
Danielle:

Also you never answered my question. Have any other decks on the property been extended? Have you looked at all 150 units or 75 upper units?

Or will this be the one and only? Not hard to determine if you walk out and ask.

I thought she had:

"To my knowledge every other deck that is on existing buildings has never been added to."

JonD1
Posts: 2,350

Posted:

Michele:

I would prefer:

"I have walked the entire property and seen for myself that there is no other deck on the property that has been extended as that above my unit."

I would guess many residents in condo/HOA type housing have little if any idea what has occured in other "sections" of the property. Most simply go home, unlock their doors, and go inside without taking much motice of anything especially at other buildings.

IF the deck in question IS IN FACT the ONLY deck being extended that would give me great reason for concern as to the actions of not only the Board President but also the entire Board AND the MC company.

I don't want to take "to my knowledge" to the bank. Just me.

MicheleD (Kentucky)
Posts: 4,491

Posted:

That's okay, Jon, I understand.

But she did answer, it just wasn't an answer that satisfied you.

I agree with you also in that I would have followed up with:

"to my knowledge" is not a complete answer. Please let us know if there are, in fact, any other decks *upper level* with extended decks.

DanielleT (Montana)
Posts: 5

Posted:

I drive down the same road every morning, every building (and every deck) of our entire association is visible from that road. If they have been added onto, none of it has been done recently (within the past 3 years). A call has been placed to the county to let them know to come check and make sure they have the proper permits, but I don't know if they actually will do anything or not.

My boss is an attorney as well as the president of two HOA's, so he was able to give me advice. Basically he said the main issue would be defining what "affected unit owners" means in the specific bylaw. Also, that the amount of common area the posts of the deck was taking up is small compared to the overall size of the grounds, and probably just piss off the court for wasting their time over a dispute between neighbors. After speaking with the other owners and my boss, I am probably not going to pursue taking them to court to force them to take their deck down. If the county does anything regarding the permits that will probably be the most that happens with the issue. Also, nobody else on the board (including the president) or the management company have responded to my emails still.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Danielle,
I still believe I would send a certified letter of concern to the Board about the structural integrity of this addition. I would request that they supply you with a certificate that this structure meets building codes that apply.
"
I also would be paying another visit to the Building insoectors office and copy them on your letter to the Board. Certainly the issue is not about the size of the common property the posts will rest on, the issue is will the thing fall down because of faulty construction. Now if this is how things are done in your area, they just ask them to reply to this effect. The construction of this kind of addition is suspect if there is no inspection and the work is not done by a certified builder that can attest to the integrity of the addition. I will point out that this owner is jeoprodizing all owners in the association. Probably late for this question but you live in a condo, you said your boss was the president of two HOA's, not the same animal.

That of course is just my considered opinion.

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