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Subject: HOA land owners rights
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LawrenceB4
(New Mexico)

Posts:17


04/13/2018 6:30 PM  
I am a new member here and I want to thank everyone responsible for this site for the opportunity for me to ask a few HOA questions. What is the general procedure of most HOA to take action against a member in good standing that they claim is violating the covenants. I would expect that first, they would call a special session of the board, notify the member that there will be a hearing, and then make a decision.
KerryL1
(California)

Posts:5395


04/13/2018 7:09 PM  
Welcome, Lawrence. There are differences among HOAs and among states about the procedures to handle alleged violations. You'll find them maybe in your Covenants or rules & regs. have you checked them yet? are you on the board?
MelissaP1
(Alabama)

Posts:7481


04/13/2018 7:15 PM  
It all depends on what your documents say. I would read those first to find out. The CC&R's should be referenced on actions the HOA can take. Fines are a bit tricky. The HOA may or may not be able to issue them. There are many variables. If they do, then they should have what is called a "Fining Schedule" detailing the violation and it's fine. The basically work like speeding tickets for the HOA.

The HOA doesn't have to call a special meeting necessarily. Ours we did not. I would write the violation and reference the violation. If they had an issue, then they could come to the open board meeting.

Our HOA we did not issue fines. Instead if you were in violation, we could first tell you to fix it. If you did not, the HOA could fix it and send the owner the bill. If the owner did not pay that bill, then we could lien for that amount. That is not how most HOA's do but in ours it is how it worked in our rules.

A HOA can't evict someone unless for unpaid dues. So a convenant violation would not be grounds. Something more to this story has to be going on. Need more details on that.

Former HOA President
KerryL1
(California)

Posts:5395


04/13/2018 8:07 PM  
As noted in my above--states vary. In CA, for instance, hearings can be held in closed session. The agenda category is Owner Discipline. I think that's typical. Certain number of days' notice is required to the alleged offender before the hearing is held. We almost always send a courtesy letter with the first offense unless there's common area damage, then it's an immediate call to hearing.

Apparently, AL is very different, but I don't know if their laws have changed since Melissa was on a board.
LawrenceB4
(New Mexico)

Posts:17


04/13/2018 9:10 PM  
Of course, I have read the covenants and the by-laws and I find them rather strange in that they do not have a meeting protocol included or guidelines for disciplinary action. They do have guide lines for foreclosing on property for non payment of dues, which they pursue rigorously. The board is so off the hook that they do not even publish a agenda before the scheduled meetings. I have requested an agenda for the April 21 meeting, but have they just ignored me. Have you ever seen a covenants that states that the covenants can’t be amended?
I was on the parliamentary procedure debating team in high school, so I know Robert’s Rules of Order by heart. I have tabulated 4 violations of the New Mexico Open Meeting law that they are oblivious of, and yes, I will be filling a complaint with the state attorney generals office.
I live in a rural and rather unique HOA where there are about 900 absentee dues paying landowners and about 50 full time residence. I am the only builder this year of a single family residence in the HOA which is a requirement to stay on the 5 acres of land in my motorhome. You would think that the HOA would be delighted that I was building, but that is not the case. The residence with the Board of Directors have formed into a clique where they enjoy the $120,000 yearly dues from the absentee owners and in actuality, they do not want any new residence, they like it the way it is. It is a very hostile and unfriendly environment. These people are so ignorant and backward that the president and directors think that a title company makes loans on titles. Ha. Ha. Ha. How can they have a quorum of 1/3 of the membership for a legal meeting when there is only 20 to 30 members show up? This is getting to long, I can go on and on.
AugustinD


Posts:1045


04/13/2018 9:18 PM  
LawrenceB4, like many states with sunshine laws, the New Mexico Open Meeting Act does not apply to homeowners' associations. The state attorney general has no authority over HOAs. Your best bet is to speak with an attorney specialized in HOAs. As for disciplinary action, case law is clear that Members of HOAs must be given basic due process rights. When this does not happen, and if the Member takes the HOA to court, generally the HOA loses.
TimB4
(Virginia)

Posts:15834


04/14/2018 3:25 AM  
Posted By LawrenceB4 on 04/13/2018 6:30 PM

I would expect that first, they would call a special session of the board, notify the member that there will be a hearing, and then make a decision.




That would be a logical expectation.

Serving on our Board and having served on our enforcement committee, I would expect owners who are informed of violations to respond to the notice either saying they disagree, will comply or don't understand the issue. Unfortunately, too often there is zero return communication.
JanetB2
(Colorado)

Posts:4108


04/16/2018 8:36 PM  
Posted By LawrenceB4 on 04/13/2018 6:30 PM
I am a new member here and I want to thank everyone responsible for this site for the opportunity for me to ask a few HOA questions. What is the general procedure of most HOA to take action against a member in good standing that they claim is violating the covenants. I would expect that first, they would call a special session of the board, notify the member that there will be a hearing, and then make a decision.


Initially they usually send a letter notifying any owner regarding any potential violations. If the Owner disagree’s with the letter sent they respond to the HOA BOD with why the claim is potentially false or incorrect.

Then, the BOD usually will set up a meeting with the owner to discuss and hear their side of the story. (There is generally the owner who complains and then the other side of the story.) For example Homeowner A claims Homeowner B’s dog took a dump in their yard in violation of the CCR’s ... Then Homeowner B has the right to defend against Homeowner A’s claims.

The BOD after hearing both sides and reviewing any potential evidence then makes a final determination. Said determination is given in writing to both the owners regarding the situation.


JanetB2
(Colorado)

Posts:4108


04/16/2018 9:17 PM  
Posted By LawrenceB4 on 04/13/2018 9:10 PM
Of course, I have read the covenants and the by-laws and I find them rather strange in that they do not have a meeting protocol included or guidelines for disciplinary action. They do have guide lines for foreclosing on property for non payment of dues, which they pursue rigorously. The board is so off the hook that they do not even publish a agenda before the scheduled meetings. I have requested an agenda for the April 21 meeting, but have they just ignored me. Have you ever seen a covenants that states that the covenants can’t be amended?
I was on the parliamentary procedure debating team in high school, so I know Robert’s Rules of Order by heart. I have tabulated 4 violations of the New Mexico Open Meeting law that they are oblivious of, and yes, I will be filling a complaint with the state attorney generals office.
I live in a rural and rather unique HOA where there are about 900 absentee dues paying landowners and about 50 full time residence. I am the only builder this year of a single family residence in the HOA which is a requirement to stay on the 5 acres of land in my motorhome. You would think that the HOA would be delighted that I was building, but that is not the case. The residence with the Board of Directors have formed into a clique where they enjoy the $120,000 yearly dues from the absentee owners and in actuality, they do not want any new residence, they like it the way it is. It is a very hostile and unfriendly environment. These people are so ignorant and backward that the president and directors think that a title company makes loans on titles. Ha. Ha. Ha. How can they have a quorum of 1/3 of the membership for a legal meeting when there is only 20 to 30 members show up? This is getting to long, I can go on and on.


Each State varies on it’s laws. Some are similar because they will base their HOA State laws on UCIOA (Uniform Common Interest Ownership Act). I personally like UCIOA based statutes because I feel it does a great job of equally protecting owners, developers, and secured creditors. New Mexico statutes are not based on UCIOA and primarily will rely upon what is contained in your Governing Documents and the few State Statutes such as: https://law.justia.com/codes/new-mexico/2017/chapter-47/article-16/

When you state: “Have you ever seen a covenants that states that the covenants can’t be amended?“ ... YEP seen them and I personally really like them and others which are difficult to amend. WHY ... because you have the choice BEFORE you purchase whether or not you like what you see ... and if not like you then have the Freedom to Choose NOT to purchase. It really peeves me when people will purchase in an HOA and then make huge waves wanting to make a lot of changes after they purchased. Why did they purchase in an HOA that they potentially did not like what was stated in the CCR’s??? Again ... If anybody does not like what they see ... do not buy!!!



LawrenceB4
(New Mexico)

Posts:17


05/13/2018 12:11 PM  
First I would like to thank everyone that replied to my post and I apologize for not answering the other post, that is because I was doing investigation and sending my findings, with charges, to the state Attorney Generals Office, Open Meeting Division for investigation and prosecution of violations of state Open Meetings Act and state Home Owners Association Act. I will let you all know the results, but for right now my actions is still kept secret. I don’t want to alarm the rats. Ha. Ha. Ha.
TimB4
(Virginia)

Posts:15834


05/13/2018 12:25 PM  
Lawrence,

The open meeting act likely applies to the government and not the Association.

The HOA act would be considered a civil law and civil laws are typically enforced by the individuals involved either though mutual agreement or the courts.

LawrenceB4
(New Mexico)

Posts:17


05/13/2018 2:29 PM  
In reply to Timb4
You have no idea what you are talking about. In my state the Attorney Generals Office, Open Meeting Division administers enforcement of the Open Meeting Act 1989 and the Home Owners Association Act 2001. Both require that all meetings, and the conduct of business of the HOA be conducted by Robert’s Rules of Order in an open method..
AugustinD


Posts:1045


05/13/2018 3:52 PM  
-- Lawrence, HOAs in New Mexico are not subject to the NM Open Meetings Act. From NMSA 10-15-1: Only a "All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policymaking body of any state agency, any agency or authority of any county, municipality, district or any political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or for the purpose of taking any action within the authority of or the delegated authority of any board, commission or other policymaking body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act." HOAs are not "political subdivisions" of any of the above-named entities. For elaboration, see Example 10 and the other examples in the NM Open Meetign Act Compliance guide at https://www.nmag.gov/uploads/files/Publications/ComplianceGuides/Open%20Meetings%20Act%20Compliance%20Guide%202015.pdf

-- The New Mexico Homeowners' Association Act (of 2013, not 2001) refers to open meetings exactly once, at NMSA 47-7E-9, as follows: "Ballots, if used, shall be counted by a neutral third party or by a committee of volunteers. The volunteers shall be selected or appointed at an open meeting, in a fair manner, by the chair of the board or another person presiding during that portion of the meeting." See the NM HOA Act at https://law.justia.com/codes/new-mexico/2013/chapter-47/article-7e . The NM HOA Act says nothing further about having open meetings.

-- At NMSA 47-7E-6(A), the NM HOA Act states that, "The association shall exercise any powers conferred to the association in the community documents." If your HOA's governing documents state that all board meetings must be open to members, then it is your HOA's governing documents that gives you as a HOA member the legal right to attend board meetings.

-- Neither the NM Homeowners' Association Act nor the Open Meetings Act require the use of Robert's Rules.

-- The NM Nonprofit Corporation Act also typically applies to HOAs. Like the statutes above, it also does not require open meetings nor the use of Robert's Rules.

-- Neither the NM Attorney General nor the NM Open Meetings Division can do anything for you when it comes to open meetings at your HOA. To enforce any part of your HOA's governing documents, requiring open meetings, will require that you threaten legal action via an attorney you hire or pro se.






LawrenceB4
(New Mexico)

Posts:17


05/13/2018 7:16 PM  
In reply to AugustineD
Please understand the tactic: OMA is an example of Robert’s Rules of Order in conducting meeting and business. the real statute I am addressing is the HOAA that is a state statue like the state statue of the OMA. This is not a pursuit of a civil action, but of a criminal action in violation of the state HOAA statute administered by the state Attorney Generals Office. I am hoping that the state Attorney Generals Office will hand down criminal investigation and prosecution of the Board of Dictators to the county District Attorney’s Office. I am a Parliamentarian Robert’s Rules of Order guy, not an attorney. Thank you for your input. Augustine.
AugustinD


Posts:1045


05/13/2018 7:38 PM  
Lawrence, for a criminal prosecution to be considered, a violation of the New Mexico Criminal Code must be alleged. See https://law.justia.com/codes/new-mexico/2017/chapter-30/. See if you can find anything there that indicates criminal activity by your board. So far, I see nothing indicating criminal activity. The New Mexico attorney general will eventually get back to you and tell you that it has no enforcement authority over your HOA for the issues you cite. Else I am happy to agree to disagree. Good luck.
LawrenceB4
(New Mexico)

Posts:17


05/14/2018 12:45 PM  
Thank you AugustineD. All I could find is “Interference with public records”, “racketeering” and “unlawful assembly”.
I suppose the New Mexico HOAA is a worthless piece of paper and the Attorney General Office is just a figurehead. The New Mexico Home Owners Association Act is unenforceable and does not apply in reality. Oh well, time to sell out and move on. This property has a long list of people that have done just that. How can anyone live under such Communist Tyranny?
RichardP13
(California)

Posts:2756


05/14/2018 1:33 PM  
Posted By LawrenceB4 on 05/14/2018 12:45 PM
Thank you AugustineD. All I could find is “Interference with public records”, “racketeering” and “unlawful assembly”.
I suppose the New Mexico HOAA is a worthless piece of paper and the Attorney General Office is just a figurehead. The New Mexico Home Owners Association Act is unenforceable and does not apply in reality. Oh well, time to sell out and move on. This property has a long list of people that have done just that. How can anyone live under such Communist Tyranny?



Don't know, but China has done it for years and look where they are at. Just saying??
MelissaP1
(Alabama)

Posts:7481


05/14/2018 5:33 PM  
It still has not been established what rule has been violated that the HOA is trying to enforce. Are you saying because you are up to date in your dues, that should exclude you from some kind of correction? That's a bit unclear. You can be up to date all day long but if your in violation, your in violation.

What needs to be known is if your HOA has the power to fine for violations? If not, can it fix the violation and send one the bill? Ours does that latter. We send the owner the bill for the violation correction if we fix it. If they do not pay that bill, then we file a lien for that amount.

So what is the exact issue you have taken such offense at?

Former HOA President
LawrenceB4
(New Mexico)

Posts:17


05/16/2018 8:18 AM  
Commentator please erase my previous post I should have redacted some names. I tried to edit, but could not find the link.
AugustinD


Posts:1045


05/16/2018 1:26 PM  
Lawrence, you might find this an interesting read: https://law.justia.com/cases/new-mexico/court-of-appeals/2005/f580-1c753-1cf41.html . I think it is a rather big deal when a HOA has a case reach the appeals court. The expense alone of lawsuits like this boggles the mind.
LawrenceB4
(New Mexico)

Posts:17


05/16/2018 2:35 PM  
Thank You Augustine, I had read the lawsuit and the result along with the CCR’s of the association before I bought the property. Paying the assessment is not the issue here. The association has about $200,000 in reserves and a powerful law firm in Santa Fe. They can lobby and appeal to the court until they get a favorable decission: a land owner can’t afford the expense. Indeed, pay the expense of opposing attorneys.
My appeal to the Attorney General Office was mailed May 9th and it should be in review this week. We will have to wait on their decission. The longer it takes for them to reply is an indication of their interest. If it is not in their purview, they will reject very soon, possibly with recommendation for action in District Court. Like, Racketeering charges. I should have never posted here, now the cat is out of the bag.
LawrenceB4
(New Mexico)

Posts:17


05/16/2018 2:39 PM  
Augustine, Is there a way I can delete the post above, I sent an email to the commentator to delete the above post, but it is still up.
AugustinD


Posts:1045


05/16/2018 6:44 PM  
Lawrence, unfortunately, based on a request I made in the past that went unanswered, whatever moderator exists does not seem all that responsive.

I do not think you have posted anything that hurts your position.

I agree that one of the problems with HOAs run by amateurs is the unwitting directors often use all the HOA money they want on the HOA attorney. The HOA attorney is, for the greater part, obliged to take direction from the Board. Plus doing so often results in the billable hours being higher. On the other hand, the directors are unpaid and often give many hours to a lot of baloney. Do you want to serve on the board? At this point, I am ready to put up with a lot of waste and mistakes by the board, as long as the mistakes are not too expensive, so I do not have to do all the work.
TimB4
(Virginia)

Posts:15834


05/16/2018 7:31 PM  
Lawrence,

I wish you luck.

Tim
GenoS
(Florida)

Posts:2229


05/17/2018 12:26 PM  
Posted By AugustinD on 05/16/2018 6:44 PM
Lawrence, unfortunately, based on a request I made in the past that went unanswered, whatever moderator exists does not seem all that responsive.

I do not think you have posted anything that hurts your position.

Sometimes the moderator(s) act quickly, sometimes they don't. Nevertheless, I agree with AugustinD re. what you've said doesn't hurt your position.
LawrenceB4
(New Mexico)

Posts:17


05/17/2018 1:01 PM  
Thank you all nice folks for your support. The drama, the intrigue and the suspense of waiting for a answer and decission; the longer you wait the better your position because there is action taken.
AugustinD


Posts:1045


05/18/2018 6:36 AM  
Posted By GenoS on 05/17/2018 12:26 PM
Sometimes the moderator(s) act quickly, sometimes they don't.


For the deletion request I made (following advice by a few people here) some months ago, the moderator did not act at all. I am glad they heard Lawrence and deleted what he requested.
LawrenceB4
(New Mexico)

Posts:17


05/18/2018 2:15 PM  
The moderator not only deleted the post but my trouncing reply to Richard without removing Richards absurd and childish conclusion about Rule by Committee, which is a Communist assertion. “Don't know, but China has done it for years and look where they are at. Just saying??”
That is the problem with thread sites like this where a person can’t edit or deleat their own material and moderators inaction/actions..

JohnC46
(South Carolina)

Posts:7598


05/18/2018 4:51 PM  
Lawrence

You came on nice and polite. Now all you want to do is argue with people that do not agree with you.
MelissaP1
(Alabama)

Posts:7481


05/18/2018 4:59 PM  
JohnC... I smell another "Mike" on the horizon...

Taking a long time for a decision does NOT mean a decision is in the process of being approved. A decision for the negative can take just as long. I would even be surprised if the information is even entertained at all...

Former HOA President
RichardP13
(California)

Posts:2756


05/18/2018 5:08 PM  
Posted By LawrenceB4 on 05/18/2018 2:15 PM
The moderator not only deleted the post but my trouncing reply to Richard without removing Richards absurd and childish conclusion about Rule by Committee, which is a Communist assertion. “Don't know, but China has done it for years and look where they are at. Just saying??”
That is the problem with thread sites like this where a person can’t edit or deleat their own material and moderators inaction/actions..




Sorry, you can't take a joke. Hell, I even thought it was funny.
LawrenceB4
(New Mexico)

Posts:17


05/18/2018 5:34 PM  
In reply to John: I discuss, debate and take issue, that is a major differents then unsubstantiated arguing.
Now, you are making an assertion without presenting substantiated argument. My reply to Richard, can be repudiated by Richard and he can take argument in his defense of his statement. We can have dialogue and discussion, that is how the free world progresses. Under Communism and Chairman Committee dictates, there is no discussion: you obey without question or debate. That is the dictate of the Committee, punishable by death.
Please John, can you defend your statement?
I know the rest of the story, you will band me, delete me from this thread because questioning and debate is not in your forte.
LawrenceB4
(New Mexico)

Posts:17


05/18/2018 5:57 PM  
In reply to Richard: “Sorry, you can't take a joke. Hell, I even thought it was funny“.
Only someone with a Homer Simpson mentality would think your stement is “funny”.
MelissaP1
(Alabama)

Posts:7481


05/18/2018 6:32 PM  
Lawerence you have never stated what action or violation your HOA is pursuing. Why can you not provide these details or a general idea? Seems your hiding something in your pursuit to hear your own opinion. Just going to call it as I see it. The HOA must have a reason to bring up a violation or give notice of one whether or not one is in "good standing". Care to elaborate?

Former HOA President
RichardP13
(California)

Posts:2756


05/18/2018 8:40 PM  
Posted By LawrenceB4 on 05/18/2018 5:57 PM
In reply to Richard: “Sorry, you can't take a joke. Hell, I even thought it was funny“.
Only someone with a Homer Simpson mentality would think your stement is “funny”.



Ahhh..My feeling are really hurt.
AugustinD


Posts:1045


05/19/2018 7:58 AM  
Posted By LawrenceB4 on 05/18/2018 5:34 PM
Under Communism and Chairman Committee dictates, there is no discussion: you obey without question or debate. That is the dictate of the Committee, punishable by death.


I think this is insulting to anyone who has lived under an actual Communist regime. HOAs here in the United States have their challenges. But I believe all states have provision for challenging board actions via the courts, using the power of the governing documents. Case law (and sometimes the governing documents explicitly) requires due process where a Board/HOA says a member has violated a covenant and the member believes otherwise. Physical violence applied to a member is rare. I think what is more common is HOA meetings where a member shoots a director or threatens a director with harm.

Going through the legal system to cure problems with HOAs is annoying, but I think, Lawrence, that you forget that the covenants were on file before you bought. The courts say you knew what you were getting into.

Many of the people who respond to posts here have served on boards. I may not agree with all current and former directors, but I find repugnant an insinuation that HOA Boards are as violent as historical communist regimes. I think such an attitude (that HOA boards are communist dictatorships that punish with violence) reflects far more negatively on the person than anyone else.
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