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Subject: Owner denied right to fix violation due to late HOA dues
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JackieJ1
(Georgia)

Posts:1


11/06/2017 6:35 PM  
My community currently has a homeowners that has received a violation notice and is about to go into fining stage The owner submitted a lot modification to correct the violation. The modification was denied and the homeowner was advised the denial was because they are behind in HOA dues. I am disagreeing with that, I can see the HOA not permitting the to make improvements however this is to correct a violation. Please advise if this is legal.
MelissaP1
(Alabama)

Posts:7388


11/06/2017 6:55 PM  
What do you mean by legal? They going to jail for it? It's more of a bad decision. Seems there may be a detail missing here. Usually what your describing doesn't connect the dots. They HOA could fix the violation and send the owner the bill instead of fining.

Not being up to date on dues usually means you lose your right to vote for elections. (Not that you can't be elected). Read your documents to see what applies to not being in good standing.

Former HOA President
JanetB2
(Colorado)

Posts:3981


11/06/2017 7:03 PM  
If what you stated is correct:

Owner submitted a lot modification to correct a violation ... then denied the right to fix because behind on HOA dues. Potentially if the HOA then fines them after denying the right to fix ... the Owner could take the HOA to court regarding the fine. Same as you I would disagree also ...

JanetB2
(Colorado)

Posts:3981


11/06/2017 7:04 PM  
BTW ... Welcome to the Forum
JanetB2
(Colorado)

Posts:3981


11/06/2017 7:05 PM  
Jackie ... If you want to know if it is legal ... you would need to ask an attorney.
TimB4
(Virginia)

Posts:15812


11/06/2017 7:10 PM  
Jackie,

I agree that it's wrong.
It's also counter productive.

However, to determine if it's legal, one would need to read your governing documents and applicable statutes. They should also talk to someone within the legal profession (a legal opinion).

The easiest thing to do, and possibly less expensive, is to simply pay the back assessments and resubmit.


Tim
KerryL1
(California)

Posts:5217


11/06/2017 8:27 PM  
Are you on the board, Jackie?

Only your governing documents can tell you & us the penalties for being delinquent in their dues. And, even then, you might need an attorney's opinion.

I think I agree with Tim here, they should pay the back dues and correct the violation. (Btw, this person doesn't seem to be a very good HOA citizen.)

Say, Melissa, some HOAs' bylaws certainly DO keep delinquent Owners from being elected to the Board and/or staying on the Board.
SC5
(Arizona)

Posts:2


11/17/2017 4:43 PM  
I live in Arizona in a condominium community with 180 units. Some units are rentaed by owners and some are owner occupied. I am an owner/member of the association (COA). It came to my attention during the last board meeting that the community buildings will not be painted (stucco) until 2019-2020 because two years ago there were numerous roof repairs that ate up the reserves. I asked about whether a special assessment should be considered. I want to point out that the buildings have a lot of peeling paint, the parking lots need to be resurfaced, the granite rocks need to be supplemented and the landscaping needs to be updated. These are the issues that I am aware, there could be more.

When Discussing the special assessment the property manager agent reported that in the past when the Board had sent out letters requiring a 2/3 yes vote hardly anyone responded at all. He went on to say that it is impossible to make a special assessment if the owners do not reply. I have read the CC& Rs and it does say that a special meeting must be called and owners notified and a 2/3 yes vote is needed to make the assessment. There does not appear to be a remedy spelled out in the document if no one responds to the assessment letter and meeting.

So my questions to the forum are:

Is there a remedy for the board to use to effecuate assessing monies to make many needed repairs and too replenish the reserves?

Can I as a owner/member write letters to my owner neighbors that point out the need for our property to be better maintained. ANd by doing so insure property values as well as renter desirability are protected?

I have never been on a board but honor our board members commitment to the community and am willing to help them, however, it appears that the property management agent is running the show. So any suggestions from board members or property managers would be appreciated.

Thank you

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Forums > Homeowner Association > HOA Discussions > Special assessments - breaking the bad news



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TimB4
(Virginia)

Posts:15812


11/18/2017 3:49 AM  
SC,

A non response has the affect of a vote against.
That may have been the intent of those not responding.


What other option is there:

More leg work - the Board going door to door explaining the issue. Perhaps with an election official to collect any ballot.


Courts - petition the court to overrule the vote (or lack there of) and impose a special assessment (of course nobody will like the board for this and it's possible that the court says no - plus the additional expense).



JanetB2
(Colorado)

Posts:3981


11/26/2017 7:58 PM  
Posted By SC5 on 11/17/2017 4:43 PM
I live in Arizona in a condominium community with 180 units. Some units are rentaed by owners and some are owner occupied. I am an owner/member of the association (COA). It came to my attention during the last board meeting that the community buildings will not be painted (stucco) until 2019-2020 because two years ago there were numerous roof repairs that ate up the reserves. I asked about whether a special assessment should be considered. I want to point out that the buildings have a lot of peeling paint, the parking lots need to be resurfaced, the granite rocks need to be supplemented and the landscaping needs to be updated. These are the issues that I am aware, there could be more.

When Discussing the special assessment the property manager agent reported that in the past when the Board had sent out letters requiring a 2/3 yes vote hardly anyone responded at all. He went on to say that it is impossible to make a special assessment if the owners do not reply. I have read the CC& Rs and it does say that a special meeting must be called and owners notified and a 2/3 yes vote is needed to make the assessment. There does not appear to be a remedy spelled out in the document if no one responds to the assessment letter and meeting. I have posted a link to AZ State Statutes below. From what I have quickly looked I do not see where "Special Assessments" are addressed via the State Statutes. The following section regarding "voting" states:

33-1250. Voting; proxies; absentee ballots; applicability; definition

A. If only one of the multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.

B. During the period of declarant control, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.

C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:

1. The ballot shall set forth each proposed action.

2. The ballot shall provide an opportunity to vote for or against each proposed action.

3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.

4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.

5. The ballot does not authorize another person to cast votes on behalf of the member.

6. The completed ballot shall contain the name, the address and either the actual or electronic signature of the person voting, except that if the condominium documents permit secret ballots, only the envelope shall contain the name, the address and either the actual or electronic signature of the voter.

7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for unit owner inspection for at least one year after completion of the election.

D. Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.

E. Notwithstanding subsection C of this section, an association for a timeshare plan as defined in section 32-2197 may permit votes by a proxy that is duly executed by a unit owner.

F. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:

1. The provisions of subsections A and B of this section apply to lessees as if they were unit owners.

2. Unit owners who have leased their units to other persons shall not cast votes on those specified matters.

3. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in section 33-1248, of all meetings at which lessees may be entitled to vote.

G. Unless the declaration provides otherwise, votes allocated to a unit owned by the association shall not be cast.

H. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

I. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the condominium documents or by virtue of superior voting power.

Sometimes you can lead a horse or (Owner's) to the trough ... but you cannot always get them to drink (a.k.a. Vote or Return ballots). Sometimes (if allowed) it is better to go around knocking on doors to have neighbors fill out ballot information or proxies (if allowed in your State or via documents). My HOA at our last annual meeting had 100% of owner's participation with only like 5 via proxies ... so if an issue is important enough it can be done. Sure it takes a little work ... but it is definately not impossible.


So my questions to the forum are:

Is there a remedy for the board to use to effecuate assessing monies to make many needed repairs and too replenish the reserves? Potentially depends on your CCR's which we cannot see.

Can I as a owner/member write letters to my owner neighbors that point out the need for our property to be better maintained. ANd by doing so insure property values as well as renter desirability are protected? You and your neighbors can discuss as you please ... in our Country that is called "Freedom of Speech".

I have never been on a board but honor our board members commitment to the community and am willing to help them, however, it appears that the property management agent is running the show. So any suggestions from board members or property managers would be appreciated. Is your BOD forgetting that the BUCK STOPS with the BOD and not the PM Company??? If the condo property is not properly maintained following your governing documents and an owner ever takes issue ... it will not be the PM who would get sued ... it will be the HOA. The PM Company is essentially just an "employee" of the BOD ... and the BOD is responsible for overseeing their employees including the Property Management Company.

Thank you

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Forums > Homeowner Association > HOA Discussions > Special assessments - breaking the bad news

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I would have recommended that you should have started a New Thread with your question because you are from a different State that the Original Poster of this thread. Having said that I have noted some bold items above and a link below.

Here is a link for your State Statutes and scroll down to Chapter 9 for Condominiums: https://www.azleg.gov/arsDetail/?title=33



JoniL
(South Carolina)

Posts:47


03/06/2018 4:47 AM  
Here you can vote in elections You just can not run for board of not in good standing.
BenA2
(Texas)

Posts:484


03/06/2018 3:41 PM  
Generally, an HOA cannot deny a modification unless it violates the CC&Rs. Unless your CC&Rs say you can deny a modification based on non-payment of assessments, your HOA probably cannot legally deny it. Anytime the HOA denies a request, they should state their reason with the specific section of the CC&Rs that it would violate.

TimB4
(Virginia)

Posts:15812


03/06/2018 6:17 PM  
Posted By BenA2 on 03/06/2018 3:41 PM

Generally, an HOA cannot deny a modification unless it violates the CC&Rs.




Ben,

You have mentioned this before.
Can you provide case law or statute?

I ask because that is simply not the case in some (I thought all) States.
BenA2
(Texas)

Posts:484


03/06/2018 7:35 PM  
Posted By TimB4 on 03/06/2018 6:17 PM
Posted By BenA2 on 03/06/2018 3:41 PM

Generally, an HOA cannot deny a modification unless it violates the CC&Rs.




Ben,

You have mentioned this before.
Can you provide case law or statute?

I ask because that is simply not the case in some (I thought all) States.



No one can restrict what you do with your private property without some authority. Even the government gets its authority to control your property from somewhere, usually from common law or, in the case of local governments, they often get the authority from the state legislature.

In the case of HOAs and your private property, they get the authority from the CC&Rs because it is a contract you agree to when you buy your property. You also agree to any properly passed changes to the CC&Rs that may happen later. They are enforceable under contract law. Anything not in the CC&Rs are not part of the contract and are not enforceable.

Some states do give HOAs a lot of latitude in interpreting CC&R and I realize many HOAs interpret vague terms like harmony of design to cover many things, but that does not mean they can create something that is not there. It would be no different than adding something to a contract after it's been signed. Unless both parties agree, it's not valid.

There is an abundance of case law ruling against HOAs that overstep their authority, probably in every state.

TimB4
(Virginia)

Posts:15812


03/06/2018 8:39 PM  
Ben,

I understand your position.

Most CC&Rs specify prior approval is needed for exterior changes.
In VA, that line says it all. There is nothing requiring the Association to give such approval and that is supported.

I agree with the subjective terms of visual harmony, etc.
However, in the cases within VA, if the Board has adopted guidelines saying what changes will or won't be approved, then those guidelines are valid.
Now, those Associations who don't have written guidelines on what will or won't be approved tend to have issues because the request then becomes based on the subjective opinions of the approving authority and to validate those opinions they point to the visual harmony section of the covenant.

Perhaps we have had different experiences.
I have seen more issues were there were written guidelines.
Perhaps you have seen issues were there were no written guidelines.


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