Poorly Run HOA and poorly written covenants

Oops, not the bylaw, but the covenants forbid trucks of any kind, including SUV's and so on.

Sorry I should have provided a bit more information. I recently moved into the community and because of my legal background the president of the assoc asked for my assistance. I agreed to assist where I could. The original writer of the CCR's and Bylaws did not add any remedies or enforcement clauses into the bylaws or CCR's at all. In fact the ability to collect assesments is a bit ambiguous. It just gives the rules but no way to enforce them. When I first read them I actually thought some of it was missing and requested a second copy.

I suggested that we do a short survey to find out which CCR's are the most important to the majority of homeowners, I don't have a problem helping the board to rewrite them but I do have a moral dilema of doing it by ambush, which is what I feel will take place if the owners do not know the real and actual reason for wanted to amend the whole CCR's. I guess my question is, is there an actual duty to inform the homeowners as to why the CCR's need updating?

I would like a little more clarification, please, on what you mean when you state that you have a legal background.

I volunteered as a concerned homeowner who has access to legal research and the ability to read legal documents.

What a load of Bravo Sierra. Ms. Paralegal IMHO the BOD already has the power to enforce the CC&R's under RCW 64.38.020 Association powers as long as they don't specifically prohibit enforcement.

Unless otherwise provided in the governing documents, an association may:

(1) Adopt and amend bylaws, rules, and regulations;

(2) Adopt and amend budgets for revenues, expenditures, and reserves, and impose and collect assessments for common expenses from owners;

(3) Hire and discharge or contract with managing agents and other employees, agents, and independent contractors;

(4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more owners on matters affecting the homeowners' association, but not on behalf of owners involved in disputes that are not the responsibility of the association;

(5) Make contracts and incur liabilities;

(6) Regulate the use, maintenance, repair, replacement, and modification of common areas;

(7) Cause additional improvements to be made as a part of the common areas;

(8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property;

(9) Grant easements, leases, licenses, and concessions through or over the common areas and petition for or consent to the vacation of streets and alleys;

(10) Impose and collect any payments, fees, or charges for the use, rental, or operation of the common areas;

(11) Impose and collect charges for late payments of assessments and, after notice and an opportunity to be heard by the board of directors or by the representative designated by the board of directors and in accordance with the procedures as provided in the bylaws or rules and regulations adopted by the board of directors, levy reasonable fines in accordance with a previously established schedule adopted by the board of directors and furnished to the owners for violation of the bylaws, rules, and regulations of the association;

(12) Exercise any other powers conferred by the bylaws;

(13) Exercise all other powers that may be exercised in this state by the same type of corporation as the association; and

(14) Exercise any other powers necessary and proper for the governance and operation of the association.

You are also poorly informed as to the reason, function, and structure of HOAs.

The board is not there to "serve and protect" the members.

Who told you that? Whomever did sorely misinformed you.

They are there to enforce the covenants and handle other required administrative functions of the association.

Remember, they are "members" themselves and have obviously invested some time and energy into the association/neighborhood by virtue of volunteering to be members of the board.

It does seem to me that you may have some bias chiseled into that chip on your shoulder, though, I will give you that.

By the way, is a non-profit corporation equivalent to a "communist regime"?

Is a FOR-profit corporation equivalent to a "communist regime"?

Why or why not?

You do realize that an HOA is simply a corporation, right?

As Mary said, restrictions that have not been enforced for 25 years may (or may not) still be enforceable.

That can only be tested if it gets to a court of law.

However, as my brother-in-law discovered in his neighborhood, it turns out they can be. He has lived in his home for over 20 years. He discovered quite by accident when he was researching something else that the lots in his subdivision have deed restrictions associated with them. In his entire 20 years at that home, he has never been assessed an association fee, nor has he ever been aware of a board of directors, nor was he aware that they had deed restrictions.

Still, though, he was entitled to enforce the covenants, and he took one of his neighbors to court over them (a parking restriction, and I don't have all the details regarding what the restriction was) -- it turns out he won.

Since then he and several other of his neighbors have enforced a few other covenants and lo and behold, their neighborhood, which was on the decline, is now looking much better and everyone is much happier. Will it translate into higher property values over time? Maybe. Who knows.

But for right now it's a much more attractive neighborhood.

Everyone,

Give the Rebecca a break. I suspect that most, if not all, of us have had the pleasure of dealing with an HOA where we thought all or part of it was a dictatorship. As we have gotten involved and understood the issues, and where to find relevant laws and discussed the issues openly with others this perception changed. I also believe that most, if not all, of us agree with Rebecca's vision of whatan HOA should be like:

"that the membership, homeowners, should be privy to all matters concerning their homes and the strength or weakness of their association. As a community they should be part of the decision making process, I believe it is their right as owners."

Many of us have written about the apathy of memberships who, if they became involved or at least attended meetings, would be "privy" to all the matters dealing with an Association. Unfortunatly, most members chose not to be involved.

Rebecca,

No, an HOA is not a communist society. An Association is only as good as the members who volunteer to run it. Your question was one of duty. The Board of Directors have a duty to the Corporation. The Corporation normally has the duty to maintain the common areas and enforce the covenants equally and fairly.

This forum is mainly made up of, and designed for volunteers who are currently serving, or have served, in the running of the Association. Many, including myself, strive for the exact thing you expect your Association to be. This is why there were so many reactions to your last post. Call it a knee jerk reaction as we are only human. I also hope that this reaction didn't scare you away as we truly will try to help where we can.

As I said, I believe that there should be full disclosure. However, that is not always possible. Additionally, depending on governing documents and/or State laws, it is usually not required. Some Associations may require open meetings and most require that minutes be made available to the membership if requested. However, the sad truth is most homeowners don't bother to ask or even attend meetings. They figure that if the streets are plowed in the winter, the grass mowed in the spring and the leaves raked in the fall all is right with the world and they don't bother to look any further until the Association knocks at the door about a late payment or rule infraction. You are one of the good ones who stepped up and volunteered. Thank you for that! Please don't let our reaction keep you from volunteering in your own Association.

As Glen pointed out, there are State corporate and property laws that apply even if the governing documents don't mention them. Personally, I believe that the your membership and your Association would be better if you stayed on the committee. Now that you are aware of this, your expertise would allow the updated governing documents to better reflect this. Additionally, you would be able to suggest including language that requires the openness you and others expect from the Association.

The choice is of course yours. As I said in my previous post, any decision that makes you ok with the image in the mirror was probably the right decision.

Tim

And yet, Rebecca, that is exactly what you just did to your new "association."

Or have you not realized that yet?

Tim, if you will recall, she mentioned that she just "recently" moved into the development. By her own statements the relationship, as such that may or may not already exist, with the board is also fairly new, and yet she immediately characterizes it as equivalent to a communist society -- when the board is apparently, also by her own statements, apparently trying to pull it back into some sort of order.

Tim, with all due respect, please go back and read the thread.

There were no posts other than yours before she jumped into the accusations of communist proportions. While you note that it may have been your response that triggered her equating HOAs with communism, I don't really think it took that much of a nudge from you for her to go there. I think her mind was already set about the board and their agenda (as she perceives it) and your comments may just have validated that for her.

I say that because I get the strong sense that right out of the box she also has a very mistaken understanding of the purpose of an HOA as well as an HOA board's role, presuming they are there to "serve" the members, which is no doubt why she perceived your post as describing some sort of communist society.

She has yet to address that particular detail, and it's no small detail. If she is already presuming that HOAs are there to serve the members rather than to administer the corporation and the responsibilities of the corporation, she's already behind the curve.

And you are correct. Yes I did, and generally always do, take exception when people try to equate a non-profit corporate entity such as a Homeowners Association with some sort of quasi- or pseudo-governmental body.

And in the process of doing so color HOAs - and the people who volunteer their time and talent to serve on the board - as something they are not.

Further, I don't know that there's any "duty" to explain to the membership why the CC&Rs need to be re-written or updated.

The fact that the documents are 25 years old is probably reason enough to update them. The fact is that the current board likely did not write them, so they have no dog in the fight as to why things were left out or why they were worded poorly or ambiguously.

But that they want to update them, make them more responsive to the membership, and make it easier to understand them, including ensuring that everyone understands how, when and why enforcement can occur, I think that's great.

We didn't write our CC&Rs either, but we get nailed all the time for having created such poorly written documents. Never mind that we inherited them from the developer, who cobbled them together from boilerplates from a variety of developments he produced. The board still always gets hung with the fact that they are hard to understand and even harder to enforce.

It is a rare HOA that has well written, simple, and easily followed governing documents.

I say more power to the board if they want to tackle that monster. I would also guess that a huge portion of the membership really couldn't give a rat's ass as long as they don't have to do the work and as long as they don't get nailed with any violation.

I would like to apologize for my response, I tried very hard only to respond to the person I felt was actually trying to be helpful. I let me anger over ride my better sense.

Michele

"The board is not there to "serve and protect" the members".

Yes they are. If they don't have the common area maintained, the pool clean, the basketball courts maintained, the streets properly surfaced, the gates functioning properly, we will get someone that will. They are OUR elected officials. That is one reason we pay dues, to maintain a life that we perceive couldn't be lived in a non-Hoa area.

Tim - I already apologized for my lapse in judgment. And as I noted I tried only to respond directly to those I felt was trying to help. You can only poke a bees hive so many times before the bees come out. From her first post to her last post, she was in no way trying to be helpful. She was trying to provoke a response or assert her superiority, either way it was offensive. I responded, that I agree I should not have done.

I will probably not seek any advice from this post again as the majority seem very bitter and very defensive. I did not think that Glens opening remark in his post was called for either, but had I already not known the laws, providing the RCW may have been helpful. I did respond simply by stating I am aware of the laws of my State, I did not respond to his opening statement.

I have been on several discussion boards but the hostilitiy and automatic defensiveness that runs through this one is very obvious. Perhaps as people who work on a board they recieve a great deal hostility from the membership of their association and they have to be like this to assert their authority, I don't know. It is not for me to surmise.

I thanked you for your assistance, I agree I need to remove myself from the situation as my views of community, openess and honesty appear to be in direct conflict the the duties that the board has undertaken. Instead I have decided to alert each homeowner and perhaps that will invoke their interest in their own association and how it should be run. The risk there is that they will simply get rid of the association.

Again, Tim, and those who were actually trying to help, I thank you for your time.

In an effort to tie this thread up and so as not to scare anyone away who may be looking for assistance, I would like to post the following:

I have found the people on this site more then willing to help (they certainly did assist me with my issue). However, those giving the advise don't know what you know. Additionally, what the poster thinks is common knowledge tends not to be included in the first post/question. Trust me, it's not common knowledge. No one here has access to your governing documents or know what was in the emails that were sent between the parties. Sometimes knowing this specific information can completely change the advise offered and may nullify any advise already given. Please help us help you by providing some of this "common knowledge"

In this specific thread, the original poster, Rebecca, said that the existing governing documents didn't have any enforcement clauses. Actually in the very first post it was stated that the HOA had absolutely no authority to enforce. Since the actual wording was not provided, it was pointed out that State law provided the authority for the HOA to enforce. It was also pointed out, perhaps not well enough, that sometimes what is legally required to be done may fall short of what is morally considered to be the right thing to be done. This was interpreted by the Rebecca as being an adversarial process.

In general, most Associations are established as a corporation so that they can be seen as a separate entity under the law. Being a corporation adds some level of protection to it's individual members (the homeowners). Those elected to serve on the Board of Directors, usually unpaid volunteers, have an obligation/duty to this corporation above the individual homeowner. This duty is often interpreted as being unfair and can sometimes be seen as adversarial. It's not.

As an example: My Association recently had a tree fall, due to storm damage, in the common area and damage a homeowners fence. Since the act of the tree falling was caused by storm damage and not an act of negligence the homeowner was responsible for the removal of the tree from their lot and the repairs to the fence. The Association was only responsible for removal of that portion of the fallen tree which was on the common area (your State may be different but that is how it works in VA). Although members of the Board truly felt sorry for the homeowner, they had a duty to the Association to follow the law as it applied to this situation. If the BOD chose to help the homeowner, it could set up a president and next time the Association might have to pay to repair someones home. This of course means you woould be paying to repair your neighbors home (or your share of the cost split amongst all members).

As you can see in the above example, when an Association must enforce an infraction of the rules, the rules of law or collect on an assessment it does become an adversarial process to the parties involved, in general the structure of HOAs are not set up to be adversarial. Unfortunately, this concept was not expressed well and, due to the words used and how they were expressed, feathers were ruffled both on the poster and on those offering advise. This led to the decline in the tone of the posting and the quality of the actual advise given.

For everyone who normally posts on this site, For my part in the decline of this thread, I am sorry. No thread should go this far unless it is in a joking manner that is easily determined as a joke.

To Rebecca, the original poster, I did misread your earlier post where you apologized and thought you were not including everyone. This had be lash out with emotions rather than logic. I am sorry for that and hope you return to actually read this.

To any new posters who might be reading this thread. Please do not judge the whole forum by this one thread. Everyone is here to help if they can. If they were able to help me, I am sure that they can help you. Even if you only agree to disagree with the advise given, it is given freely in an effort to help.

Tim

Ah, Richard, here we go again.

No, they are not elected "officials" -- they are administrators, plain and simple.

They are not there to serve you and they do not receive any pay or compensation for their administrative activities.

Once again you are attempting to fit the square peg into the round hole and it just doesn't belong there.