Revised Letter to Out of Step HOA President

Once again, I want to thank everyone for your input. Based on your input and the input of an attorney, I've included a revised draft copy of a letter to our HOA president. Please let me know what you think. Thanks again for your input! George

9.16.10

To: ____________, HOA President

Thank you for taking the time to respond to my letter. With regards to the dated photos you mentioned that were taken of CC&R violations at the 150 South Avenue address, they have no relevance, as there are no statutes of limitations with respect to inforcing CC&R violations. The CC&R violations in question are considered “on going”.

For the benefit of interested parties, a homeowner became suspicious of the work completed in the front yard of 150 South Avenue, and asked if the owner had obtained approval. It was learned that the owner had not obtain approval from the ACC. As a result, the homeowner was cited for being in violation of (4) infractions of our CC&R’s each requiring corrective actions. The homeowner contended the violations. The ACC made a second review of the (4) violations and found them to still be appropriate. At this juncture, you (HOA president) stepped forward to state that our CC&R’s would not be applied in this case because the dated pictures showed the work was completed 2 years ago, also because the homeowners have their house up for sale.

By your actions you have failed to uphold our CC&R’s. Not only do our CC&R’s not support your actions, you have put our CC&R’s at risk of not being enforceable in the future. A homeowner can simply refer to a precedent was set when violations were 1. noted, documented and communicated and 2. allowed.

Sections of our CC&R’s that you are putting at risk include:

1. / Section 9.13 – Landscaping and Exterior Maintenance, which helps to preserve the values of our homes; 2. / Section 5.4 – Plan Review, which allows for a qualified group of homeowners to assess an Application for Approval to assure that both the execution and end result of an improvement project complies with our CC&R’s, and is also of high standards, and will maintain the aesthetic integrity and overall quality of our community; and 3. / Section 9.8 -Sight Distance Easement which protects small children from be hit by a vehicle backing out of a driveway by requiring bushes and shrubs within the sight zone to be no taller than 30 inches.

You implied in your letter that similar violations have been allowed in the past. It’s important to recognize that the violations such as the ones at 150 South Avenue have not gone unnoticed. For example, in the last 6 months (2) similar front yard projects that had not received approval from the ACC were addressed in the same manner. In each case, the homeowner was sent a violation letter outlining the infractions and the corrective actions needed to bring the property into compliance with our CC&R’s. In both cases the owners responded positively by completing each of the corrective actions. In both cases the front yards were returned to norm, and in compliance with our CC&R’s.

You stated in your letter that you "disagreed that home values could be affected". To give you some idea of how important CC&R’s are to homeowners, it’s estimated that 50 million Americans live in association-governed communities. About 6000 to 8000 new community associations are formed every year. It’s estimated that 80% of the homeowners who live within these communities do so because they know that CC&R’s help to protect the quality of life and the value of their homes. A recent survey of home owners in our community clearly showed that over 75% of our homeowners feel the same way.

For the reasons stated, you are here-by being asked to cease-and-desist your action to obstruct the business of our ACC, including holding the property owner at 150 South Avenue responsible for the (4) violations of our CC&R’s that require corrective actions. It is anticipated that a letter will be mailed to the above homeowner by Thursday 5.20.10, denying his request for waiver; and would re-state the (4) violations and corrective actions required.

Regards, George Andersen
CC Management Company

George,
Did you ask about revising this letter here on HOA talk. I don't remember? Hoowever, the question still would be, in my opinion, why is your board letting the President act unilaterally? You don't even mention copying the Board. If the situation is close to what you describe, you all need to sit down and hash out who is running the show. It is not normally the President. The President serves the Board (didn't they elect him/), the Board serves the people (you elected them), the mangement company serves the Board (the Board hirerd them). So your issue is surely a board issue and if you want to charge anyone for derilection of duty, charge the Board. However, this is a serious charge you are making and if it ends up in court, I hope you have substainal records of attempts made to resolve this at the table with the Board. If you can't establish good faith on your part, accussations alone may not win the day. But it is your call, and the details are really known to you alone. I am sure you are aware that most boards carry insurance that provides for legal support if the members are challenged in the line of duty (so to speak)I certainly would give the board members notice by cc, or better yet, let them read your letter prior to sending. If they are in step with the Board President, I think I would redirect this to the whole Board. But really, I'm not sure, I would want a legal opinion before I sent it. It could be nothing damning at all, just a written complain, but it could be far more than that.

Thanks Robert for your comments. Here is some further background that may help to clarify the situation. The letter from the homeowner, that was found to be in violation of our CC&R’s, requested a waiver on each violation and also expressed several complaints on issues concerning our community in his letter. I made a request to the HOA President that we (the board) should review the complaints, lodged by the homeowner, as a group. One issue in particular that caught my attention, was a complaint directed at one of the board members who allegedly allowed his dog to become aggressive towards the homeowners children.

A meeting was attempted on two separate occasions; and unfortunately due to vacations and possibly a lack of interest, we could not get more than two people to attend a meeting to review the homeowner’s list of complaints. At that time, the HOA president asked the ACC to take a second look at the (4) violations. The ACC came back stating that the violations are still valid and should be enforced. It was at this time that the HOA president stepped in and made the decision to override the ACC, and allow the violations to remain.

I just became a board member this last year, and have come to realize that some people on the board and ACC appear to have lost their interest and have dropped out. We are what you might call “short handed” at the moment. We have two very knowledgeable people sitting on the ACC, one being a past HOA president.

I would say that the President does not have the power to step in and make the decision to override the ACC. Only the Board could do that.

But, seeing that the Board is mostly non-functional, the inability to have a Board meeting may mean that the ACC recommendation cannot be acted upon or enforced temporarily (or, in a dire case, semi-permanently).

You are stuck in no man's land: the violations stand but there is nobody for now capable of enforcing the violations. It is likely that the President couldn't enforce them, even if he wanted to.

Mary, I am not sure what is happening here but:

Read the op first post. I think he is saying there is only two functioning Board members, him and the President. The Acc seems to function and made a recommendation, right wrong...who knows. Then the President steps in and overrides the ACC. Part of the question seems to be can the president do this in view of the circumstances, if they are as I imagine? I really don't think at this point the board can make any binding decisions like exempting this person from a covenant violation. It is a Board vote of one no, one yes. Decision would have to be tabled until a future time.The OP has equal vote status on the board.

Does that sound right to you?

Again, thank you all for your input. It’s been excellent. A couple more things that my shed some light on the subject before sending the letter. As you may know, two attempts were made to have the board and ACC members meet to discuss the violation issues. Only two people could attend in each case. At that time the HOA president said, since we can’t get board members to meet on this subject, then “the ACC can make the final decision, it’s only fair”. The ACC was asked to take a second look at the violations, and came back with the same determination. To the ACC’s amazement, and mine, the HOA President over-road the ACC’s “final decision” and said that the violation will be waived because the violations occurred 2.5 years ago and the house is up for sale.

The HOA president contacted our management company putting a stop on the letter to be sent to the homeowner denying the request for waiver. I sent the HOA president a letter outlining the problem as I saw it, stating that the violations were well documented, supported by our CC&R's, and that the CC&R’s are very clear about the ACC making determinations of this type; and asked that the waver be reconsidered. The HOA president sent me a letter stating: “As President of the ABC HOA I do not feel that it is fair to go after Mr. Smith's purported "violations" based on the fact (and he has dated pictures proving the following) that this yard work was done 3 years ago.” I replyed by informing that violations are "on going", and a statute of limitation does not apply.

The balance of the letter was fraught with miss information, which I responded to each claim in the letter you folks have read. The following paragraph will be included:

You also stated that shrubs were dying on the property, and that the recently planted shrubs would grow and cover much of the bark; when in fact the situation is quite the opposite. Previous violation photos of the property clearly show several shrubs on the property to be thriving. Current photos show only 10 percent of the area stripped of shrubs having been replaced with shrubs. Much of the denuded area is covered with flagstone.

CC&R Sections:

Section 5.3 – Submission of Plans

Before the initiation of construction upon any Lot, the Owner thereof shall first submit to the ACC a complete set of plans and specifications for the proposed improvements, including site plans, grading plans, landscaping plans, floor plans depicting room sizes and layouts, exterior elevations, specifications of materials and exterior colors, and any other information deemed necessary by the ACC for the performance of its function. In addition, the Owner shall submit the identity of the individual or company intended to perform the work and projected commencement and completion dates.

Section 5.4 – Plan Review

Upon receipt by the ACC of all of the information required by this Article V, it shall have 21 days in which to review said plans. The proposed improvements will be approved if, >>>in the sole opinion of the ACC:<<< (i) the improvements will be of an architectural style and material that are compatible with the other structures in the Property; (ii) the improvement will not violate any restrictive covenant or encroach upon any easement or cross building set back lines, (iii) the improvements will not result in the reduction in property value, use or enjoyment of any of the Property; (iv) the individual or company intended to perform the work is acceptable to the ACC; and (v) the improvements will be substantially completed, including all cleanup, within 3 months of the date of commencement (6 months for the construction of a completed house).

George,
NOW, we find there is a management company involved that stopped the letter from going out.

George, do you understand that unless there is something written in your documents or your contract with the management company, they can not pick and choose when mail goes out under the Boards signature or authority. What is your relationship between the Board and the Management Company? Things are bad at your place George and your insistance that this ACC thing overrides everything else is dangerous. If the M/C is going to take orders from the president they better have this is writing or a set precedence that this is how it has always been. You and the president , maybe by default, but none the less, you are the governing authority. You are not functioning.........you must deal with this one way or the other, I can't see how you will accomplish this by trying to determine if the ACC has the power to enforce your covenants.

I expect there is a lot more going on and has gone on. In order for any governing body to conduct their business they have to present the structure to manage their mandates. I don't see it happening with you all, not from what I read.

But, that is my final word and please understand, I am expressing an opinion, I am not giving legal advice (see disclaimer on this site), I don't always give the proper or the most productive advice. You all are headed to the courts.

Sorry,
I have no idea why the triple post, would appreciate it if Hoatalk would correct.