Board not adhering to Court Mediated Settlement

I brought a Small Claims case against our Assocation and while it was losing the case it agreed to a mediated settlement.

I agreed to the settlement and we drew-up the settlement. One of the requirements was to perform repairs to my property. This was done because repairs were performed on all the other units but the Board conveniently overlooked doing the repairs to my unit. The Board was given 60 days to perform the repairs. It has now been close to 30 days and I sent an e-mail through the Management Company to the Board of Directors asking when we could set the time for the repairs. Per the mediated settlement I provided them with a quote from my independent vendor and the Management Company, 1 week after the hearing, came onto my property with the HOA vendor to inspect and get a quote for the repairs. From my request e-mail I got the following response from the HOA Board of Directors via the Management Company:

The HOA is in the process of getting quotes. The HOA will due critical repairs first. Some unit holders have not been paying monthly HOA dues. The HOA will do critical repairs that are within the HOA budget to maintain reserves.

The way I read between the lines as they didn't reply and provide me a date was that they don't plan on performing the repairs.

I sent back an e-mail indicating that as I read it they don't plan on doing the repairs as agreed upon and thus had 5 business days to reply that I was reading the communication incorrectly and that they plan on doing the repairs or I would repopen the Small Claims against them. So far no reply.

I also found out the following since the case was closed.

1) The Board President, on his own without consulting with other Board Members, granted authority to the Board's Proxy representative at the Small Claims hearing rights to negotiate on behalf of the Association.

2) The Board President 10 or so days after the above put his unit up for sale.

I feel the Board President acted illegally in granting the right to the Proxy represenative and also has no intention of honoring the mediated settlement.

A couple of Questions

1) Can I reopen the Small Claims case prior to the 60 days or do I have to wait until they absolutely don't do the work to reopen? Note: the Court calendar is 60 days out so if I refile then the court date would be set past the 60 day period.

2) If I refile the case should I put in a claim against the Board President, the HOA as originally done, or both?

3) Do I need to send a certified demand to perform letter to the HOA or is the request to perform E-mail sufficient?

I'm not an attorney, but the way it looks from what you have stated is:

1. You agreed to a mediated settlement for the work to be completed in 60 days. You must also abide by what you agreed otherwise a Judge would probably not look on you favorably for not keeping your side of the bargain. Don't read between the lines ... Your response should have been: Thank you for the update regarding our agreement to complete the repairs within 60 days ... Then you sit back and patiently wait. It was your choice to mediate when you were supposedly winning.

2. If the board had a proxy representative (http://legal-dictionary.thefreedictionary.com/Proxy+representative / A proxy is a person who is designated by another to represent that individual at a meeting or before a public body. It also refers to the written authorization allowing one person to act on behalf of another.), this was given by the board. Therefore, most likely the President did not grant anything that had not already been granted by the board, so what claim would you have against the Board President?

3. You do not need to send anything ... you wait the full 60 days then go back to the beginning, but this time you know not to mediate.

If you are being impatient and demanding, then they will probably be more likely to take their time in completing the work.

You must wait for 60 days before starting any action.
Then, return to the court and tell them the HOA is non compliant. The court will handle things from there. If fact, you can just sit back until then.

Whether the president sells, buys or just hangs has NOTHING to do with your case. The HOA is more than indiviudal persons on a board, and that's who will be responsible for satisfying the court order (the HOA as a corporation)

Patience, grasshopper.

JanetB2,

Just a clarification

When we started the Small Claims the Court offered mediated services prior to the hearing in front of the judge. The proxy person and myself agreed to begin discussions. The first thing I asked is what authority do you have to act on behalf of the Assocation. I was told all authority except granting of monetary relief. I said this is unacceptable and ended the the mediation.

We then went in front of the judge where I started presenting. About 1/4 way through the judge said they were breaking for lunch and she then said to the Proxy person that she recommends that she contact the Board to find a way to get a remediated settlement because they were loosing badly on at least 5 counts and I wasn't even a 1/4 way through.

We left the court on the lunch break and about 15 minutes later the proxy contacted me and said she got approval from the Board President to negotiate. I returned to the Court area and started discussing with the Proxy. We couldn't agree on somethings so she contacted the Board President via phone. He was being hardnosed and I said forget the mediatiation and then all of sudden he agreed. I even talked to him on cell phone and he was going back and forth and agreed to the terms. Here is where I figured out he was acting on his own without approval of other Board Members. Why - well Board Member #2 was at work and Board Member #3 is in Northern California. There was no way he could talk to them simultaneously and grant the conditions that he gave to the mediator. In fact, each time the mediator said she would have to get confirmation from "HIS NAME", the President before proceeding not that she would get approval from Board. Additonally, all actions in our community generate from this one person and the other two Board Members just go along for the ride.

Regardless, if the HOA does not comply at the 60 day mark I will bring-up this to the Court along with the fact that they are not complying with the Court order.

Thanks,

David,

If you go back to court keep it simple. What I mean is just say that you entered into mediation on good faith that the representative of the Association had proper approvals to enter into negotiation. The agreement was xyz. As of the date of filing, the Association failed to comply with the agreement.

I would suggest leaving out all the details about the President moving out of the area, etc. It's not relevant to the agreement. If the Board wishes to use the line that the proxy overstepped his authority, let them try as I believe it would only help your case.

Tim