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Homeowners proposing motion, being passed and the President refusing to accept

Started by CharlesC • 16 replies • 3053 views

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CharlesC (Washington)
Posts: 9
Posted:
We live in a HOA in WA state. Recently we had our annual meeting, for which there was a letter sent out advising homeowners well in advance of the meeting and it's location. There was an agenda done and in the #6 position, "Litigation". Meeting was called to order, business was conducted and toward the end of the meeting a motion was made by one homeowner to stop the litigation. (our HOA went after a homeowner for his fence post heights initially and lost in a summary judgement, the homeowner was awarded 6000.00 with 12% interest daily). The president and two of his board members decided to appeal the judgement without consulting the homeowners. The above mentioned motion was seconded, the secretary asked how it was to be written, a discussion followed wherein the president spoke, as well as several homeowners. Question was called and a vote was taken. When it was obvious there were too many hands in the stop the lawsuit count, the secretary asked those who opposed the motion to raise their hands (only 4 did) There was a quorum of 26 homeowners in attendance out of 101 homes. The president then got up when he realized the vote was going in the homeowners direction and refused to accept the vote, his board members actually left the building. His excuse is the RCW64.38.035, that the homeowners were not notified of this motion so they could vote on it. We contend that since "litigation" was on the agenda and a notice for the annual meeting was mailed out to all homeowners it was a legal and binding motion and vote. What is your take on all of this???
LuciusD
Posts: 139
Posted:
I have no idea what RCW64.38.035 says.
However, my first question would be "do the the bylaws of the association make this a question upon which a vote of the members is any more than advisory?" In my experience, members often do not recognize what is delegated to the board and what is reserved to the membership. This may be an issue in which the board is delegated final responsibility and authority. If it is, the vote of the membership is simply an "opinion poll" and not a binding directive.

LuciusD
Posts: 139
Posted:
After reading RCW64.38.035 as well as your bylaws and CCR's, I am not at all convinced the motion to stop the appeal can be regarded as anything more than an expression of opinion. It looks to me like the decision to appeal was entirely up to the board and there was no requirement to consult with the membership. Litigation was probably included in the agenda as a courtesy to inform the members, since, in my opinion, their approval was not a requirement.
(However, I will admit that the division of powers between your board and your membership is not defined as explicitly as I had hoped to find.)
RogerB (Colorado)
Posts: 5,067
Posted:
Charles, since the Chair allowed the motion and took a vote I believe the vote is must be accepted. The President's argument that the motion was out of order could have been valid if stated at the time the motion was made.

The Board may believe they have the authority of ignore a motion which was passed by a stong majority of the members present at a valid meeting. But that would not be good business judgement and those Directors chosing to continue legal action would place themselves in jeopardy. IMHO, if this is about the high fence posts, it should have been resolved without involving any attorny; never gone to trial court; and absolutely should not go to appeal court.

RogerB
WardellD (Washington)
Posts: 64
Posted:
RogerB;

Homeowners associations (HOAs) are non profit corporations that are governed by two statutes (RCW 64.38 for HOAs and RCW 24.03 for non profits). HOAs are also governed by their CC&Rs and bylaws (collectively "governing documents"). Generally, RCW 64.38 controls unless it states otherwise (such as deferring to the HOA's governing documents) or is silent. When RCW 64.38 is silent, then RCW 24.03 controls unless it states otherwise or is silent. If both statutes and the governing documents are silent, we also look for guidance to the statute that governs regular corporations (RCW 23B). ===================================================================
Please give me the steps as for how we should have resolved this issue, should the board have made the decision to go on to his property and cut the post, should we have allowed the homeowner to do what they wanted, should we have hired a management company to step in and get him to cut the post, should we have called the police, what do you think we the board should have done. This meeting got out of hand, and the motion was never completed.

The last thing that took place was for this to be tabled and for them to get a petition going and allow all the homeowners to know what was going on. Then I would call a special meeting and allow all 101 homeowners to vote on this, not just a few.

This is the best thing to do, that way all homeowners would know what is going on accorded to RCW 64.38 and not allow just a few to vote for the whole 101 homeowners once the homeowners are put on notice what the meeting is about (To drop the litigation) and then if they don’t show up then the majority of the members at the meeting plus the counting of the proxies’ will indicate what the people want.
CharlesC (Washington)
Posts: 9
Posted:
Roger,

Truly this would have been the best recourse in the beginning, but this board of only 2 - 3 individuals did not initially include all 101 homeowners, so the 26 (quorum) that did attend the meeting made this motion. This HOA historicallly, disapproves anything the homeowners put forward to them. Some of the individuals on this very HOA had recently been voted off by a petition that was never good enough for the board and was sent back 3 times supposedly incorrect per their standards. 44 homeowners signed that petition, yet the board contends it's only a few unhappy individuals causing trouble. All of the pertinent information was on there but still it did not pass. An attorney even suggested to the board and their attorney that nothing the homeowners ever did would pass. The thinking now is that any new petitions would probably not pass the muster either so why bother????

Thank You
CharlesC (Washington)
Posts: 9
Posted:
Roger,

Truly this would have been the best recourse in the beginning, but this board of only 2 - 3 individuals did not initially include all 101 homeowners, so the 26 (quorum) that did attend the meeting made this motion. This HOA historicallly, disapproves anything the homeowners put forward to them. Some of the individuals on this very HOA had recently been voted off by a petition that was never good enough for the board and was sent back 3 times supposedly incorrect per their standards. 44 homeowners signed that petition, yet the board contends it's only a few unhappy individuals causing trouble. All of the pertinent information was on there but still it did not pass. An attorney even suggested to the board and their attorney that nothing the homeowners ever did would pass. The thinking now is that any new petitions would probably not pass the muster either so why bother????

PS: This is now a $20,000 fence. How much do you want to pay for a fence?
Thank You
WardellD (Washington)
Posts: 64
Posted:
You sign you name as CCallahan but we know it is not your husband it is RCallahan. You are to be elected again as a board member and you speak to people that you don’t know and still you are not telling them the whole truth.

Yes, I think there were 44 names but the truth is that the homeowners were thinking that they were signing a petition to allow you to look at the books you all change the language on the petition to say remove the board members. This is why we had you do it over.

If you have a petition the language on the petition should be on the same form as the signatures.

What you all did was try to deceive the homeowners. This is why you lost so many signatures the last time around, and this is why the homeowners voted to keep the board members.

The next thing you will come back and tell these people that we kicked you off the board.

You must remember if you want these people’s honest opinions you have to start off by telling the truth.

Thanks

Wardell
HaroldS (Arizona)
Posts: 906
Posted:
Well, if this board is going to continue on with this litigation, THEY should have asked for a complete vote from the members which is probably required to approve major spending issues. It has gone from $6,000 to $20,000 as we speak. 26 out of 101 lots is terrific attendance, and for the board to ignore the vote of 24 of them is risky. They might get a big surprise if they have to come back and ask for a special assessment if they have to pay fees and awards after this is over. And I doubt their insurance carrier will cover them after they ignored the wishes of the quorum at that meeting. Harold
WardellD (Washington)
Posts: 64
Posted:
HaroldS

We don't have a problem, stopping this if the majority of the people were notify that this is what the meeting is about. Again this has to be done by the majority of the people and they need to be notified:

Our RCW states that when calling a meeting the purpose of the meeting must be stated and what the meeting is about.

This could have been resolved if that person would have did what he was asked by the board and by the homeowners, he was asked to cut them and he stated that he would think about it.

So they need to come to the board ask for the board to call a special meeting to stop the litigation, this is a very easy process but they have deceived the homeowners before.

Why would you not want the majority of the homeowners to vote on this it only takes 10 people to call a special meeting?
============================================================
RCW 64.38.035
Association meetings — Notice — Board of directors.

(1) A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the board of directors, or by owners having ten percent of the votes in the association. Not less than fourteen nor more than sixty days in advance of any meeting, the secretary or other officers specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by first class United States mail to the mailing address of each owner or to any other mailing address designated in writing by the owner. The notice of any meeting shall state the time and place of the meeting and the business to be placed on the agenda by the board of directors for a vote by the owners, including the general nature of any proposed amendment to the articles of incorporation, bylaws, any budget or changes in the previously approved budget that result in a change in assessment obligation, and any proposal to remove a director.

(2) Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.

CharlesC (Washington)
Posts: 9
Posted:
This retoric could go on for years. The fact is that there are serious problems in our HOA. One inidividual cannot create the kind of animosity that comes from our board and still want people to believe that someone else is lying. There were no lies told by me or our group, we consulted and attorney, we drafted it up legally and did not lead people one. If you believe that is true have those individuals testify in a court of law. That seems to be your favorite forum. This just needs to end. If you cared about what the homeowners wanted you would have asked them in the first place.
RogerB (Colorado)
Posts: 5,067
Posted:
Seems like there are differing stories on what really happened at that Annaul meeting. Therefore, I retract my answer given above.

Bylaws usually give the board the authority to make decisions on the law suit. If enough members disagree with the board's actions they can petition to call a special members meeting. But any petition should be valid otherwise the board may not accept it.

Meanwhile, keep in mind that it is the responsibility of the board to see that covenant violations are enforced. To not do so would be a violation of their fiduciary duty. Sounds like some non-board members want to try to tell the board what to do and not do. I think they could be more effective and less frustrated if they provided constructive suggestions for the board to consider.

BTW for the owner in violation of the Covenants I would have fined him until he came into compliance. If he still did not comply after doubling the fine numerous times, then I would get a court order; have a contractor correct or remove the fencing - which ever is approved by the court; and assess all costs, including but not limited to, fines, lein costs, legal costs, contractor costs, and administrative costs to the owner's property. If he did not pay these assessments I would initiate legal action which ultimately could lead to foreclosure and sale of his property.

RogerB
CharlesC (Washington)
Posts: 9
Posted:
RogerB,

Again you are seeing and hearing what an inidividual wants you to see. We are not the ones who got mad on the web-site and put someone's surname on the web. This is how this board deals with people who question them. There have been many suggestions made, but the root of the problem is not the fence. Two neighbors had issues over barking dogs to begin with, one neighbor took another neighbors rock wall down and attached their fence to the other neighbors fence without asking permission first, since emotions ran high, the court made the decision that the person hooking up their fence was wrong and made them do the right thing per the courts. That individual then gets on the board 3 years after the fence was constructed and the trouble all of a sudden begins. If the HOA had a previous problem with this fence they should have addressed it much earlier, not waited until two private homeowners had a beef and then one gets on the board and now make it a problem. By the way that particular homeowner has since moved. Roger if you think this website got heated up because of this HOA you should be in the meetings. No one can give positive suggestions unless the board agrees. If you don't agree they slam you and your name publicly and try to make you look bad as exhibited here. Instead of answering the question they convolude it with other issues. If they want the 101 homeowners to vote by petition as they say 4 days after the meeting why haven't they gotten the "petition", to the individuals so it can begin, since it seems this is a hot button I would think this would take big priority at this time. They stated they would insure it was given to us so we could proceed, only their way or the highway. That still has not been done. At last but not least we tape these meetings so there will be an easy record of what actually happens, not for vindictiveness and anyone in attendance knows it is being taped so we have a record of what is being said. We would think most people would welcome this since it gives an accurate view of the meetings. Three homeowners tape in different locations. The motion was not "tabled" by the homeowners, the president wanted to table it. The ballot to vote for board members and By-Law changes was tabled because the homeowners were not given enough time to make intelligent decisions. As I stated previously there are serious problems within this HOA and if you don't agree, with this particular board you are the bad guy. You cannot just follow like sheep. You must insure you checkbook is balanced and the only way to do this is to keep questioning until the answers come out. There realling is nothing more for us to say, it would only continue and more nasty retoric would be sent out by angry people.

Thank You

CharlesC
WardellD (Washington)
Posts: 64
Posted:
Mr.and Mrs.;

I do not have a problem with her using your surname but I do have a problem with people pretending that they are writing when it is really someone else.

You were a board members and you were removed by the people you wife was a board member and she was removed by the board members but later reinstated because of the RCW saying only the homeowners can remove a board member even thou our by-laws said we can (I am not going to go into the reason why she was removed) but now she is allowing her self to come back on the board (Let me explained what I mean by this it only take one vote to be on the board I am not saying that no one else did not vote for her but if we were to use a YES and NO ballot I would think things would be different).

You and this HOA are not trail on this forum, this forum is used to ask questions and to look for feedback from other homeowners and homeowners associations, and the key is you have to be or try to be as honest and accurate as possible. The people on this forum can only give you their opinion and advice but you have to the take that information and make the final decision.

The truth of the matter is that everything I do you two try to find fault in it. Just remember I am just the president of the board it is not me that you really have to try to work with it is the other trustee and you fail to do that.

You have not ones spoke about anything good that I have done within this community. We have 101 homeowners in this community and I would say that there are not more then five people that we have a problem with (what I mean by that is their folder is about 2 to 4 inches thick when others only have a copy of their paid dues and maybe a reminder about something but nothing like you are trying to depict).

The problem is that you two are not team players you are always looking for the negative instead of the positive.

Again this forum is not here to air out our dirty laundry but just remember just because we live in the country do not mean we have to live like pigs.

Here we go again there were so many things going on at that meeting and the meeting was so out of control everyone was yelling and now that you have mention it their was one person that asked for the petition form and I said that I would do that so you can do the petition to call a special meeting to drop the litigation, but I for got with all the things that are going on, we don’t have a approve budget and everything else.

But I am perplex now, you mean to tell me you can take the time to tell this forum this but you can’t take the time to email me or the board members and request a copy of the petition form.

IF THIS WAS SO IMPORTANT TO ME I WOULD HAVE BEEN REQUESTING IT THE NEXT DAY.

See how easy it is to put the blame on someone.

Wardell

LuciusD
Posts: 139
Posted:
I sure hope the person that wanted to start a new HOA is reading this.
FrankD (Arizona)
Posts: 10
Posted:
Charles,
Just to let you know you're not alone...You have a $20,000 fence, we have a $30,000 blue tarp wanna trade?

We're having the same difficulties as you with lawsuits that the HOA knows NOTHING about until it reaches these huge numbers.

Keep up the fight and I look forward to your future posts good or bad.

SwanB (Washington)
Posts: 199
Posted:
What a mess. I hope the best for this HOA. It seems like we were almost in the same spot a few years ago but things have turned around for us. Unfortunately we still have to listen to those few who only choose to see the negatives of all our actions or lack of as board members...or community members.

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