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Subject: HOA doesn't keep minutes, hasn't had quorum in a decade at least
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DanM12
(Georgia)

Posts:20


06/08/2019 8:25 PM  
My HOA is kind of a hot mess when it comes to performing basic fiduciary duties.

They haven't had a quorum, or sent out notices of meetings in the decade since I moved here.

(until I went to the 2017 meeting...where I had to teach the meaning of the word "quorum", and read them the section of the covenants that says they have to mail out notices every year...

They incorrectly claimed they could just send emails out...that was a huge argument)
They didn't issue any financial reports.
They didn't elect any new board members or officers; they just handed off to some other people.
I'm pretty confident they haven't kept basic records, like minutes of meetings, probably ever.

I'm actually pretty sure I'm the only one who's read all the governing documents.


So, now they've hired an aggressive MC who's basically a friend of a former board member, and they're sending all kinds of violation notices out,


The situation isn't dire. The neighborhood is pretty nice, property values have never been higher around here to my knowledge. The new people just seemed to think it was a good idea to invite a MC to give us unnecessary petty violation notices.

I like living here, but not a fan of someone counting how many flowerpots I have in the front yard (actual notice I received this week!)

I'd like to put them in check and get them to chill out. I think they've potentially exposed themselves on many legal fronts.

Has anyone been in a similar situation?

How do you think should I proceed?


PaulJ6
(New York)

Posts:15


06/09/2019 4:31 AM  
The hiring of the management company might not have been done by a properly-elected board, and the hiring of the management company might not have even been done in accordance with the governing documents. And the notices might not be by the book, either.

So if you want to be aggressive, you could let them know that you’ll be challenging the legality of all of that.

But it’s better just to get like-minded people to band together and vote them out of office.
MelissaP1
(Alabama)

Posts:8184


06/09/2019 6:05 AM  
My suggestion. Fix the violation you were cited for. After that, try to find out more about how to attend HOA meetings and running for the board. Is your HOA still under developer control or is it under the owners?

Plus it sounds like your HOA hired the MC to issue out violations on their behalf. It may be part of their new contractual agreement. If so, not much you can do but go through the appeal process. There should be one if they are issuing out violations.

Sorry but living in a HOA means living with restrictions... Sometimes we violate them.

Former HOA President
AugustinD


Posts:1631


06/09/2019 8:41 AM  
DanM, were your flower pots in actual violation of a covenant? Are these other so-called petty violations bona fide violations of the HOA's covenants? It seems to me that a HOA member is on weak ground when he or she asks a HOA Board to comply with the covenants/Bylaws regarding meetings but at the same time, the HOA member is not interested in complying with the covenants applicable to him- or herself.
DanM12
(Georgia)

Posts:20


06/09/2019 8:56 AM  
The covenants and architectural guidelines are silent as to the correct number of flowerpots.

I found that petty, but of little consequence.

Whether or not I have the correct number of flowerpots has no bearing on the fact that the HOA board is not fulfilling their fiduciary duties, or has not been properly seated.
That's the main issue, in my view.

How do I make them prove they've been properly seated on the HOA?

I would think they should be able to provide records of the elections, minutes of the meetings as a prerequisite to claiming their authority to hiring the MC without a membership vote?



DanM12
(Georgia)

Posts:20


06/09/2019 9:03 AM  
that's kind of my thinking...

the main problem, is due in part to the fact they haven't been sending notices out properly I'm sure, is getting the 51% quorum together

probably not impossible, we're at about 160 houses here
only about 20 people showed up to the last meeting

I guess I could start a proxy campaign

I don't want to start a war, and I'm not against the concept of having an HOA, but I would like to keep them in check
MelissaP1
(Alabama)

Posts:8184


06/09/2019 9:05 AM  
Well what kind of voting does your HOA do? Is it by ballot? What type of ballot if they do? Is it at a meeting or special meeting? Your asking for "Proof" but what counts as "proof"?

Our HOA at election time was pretty simple. Members showed up at the January meeting to vote. If you wanted to run for the board, you raised your hand. We had 5 board positions. So if you got 5 people to volunteer (Miracle) then basically those 5 were the board. After that, we (board) would vote/volunteer for the office positions. Someone would usually voice what position they wanted. Once that was established, we'd go to the bank and sign signature cards to the account and remove the old members.

Honestly, there wasn't much "proof" of actual votes except a raise of hands people who attended the meeting. We put it down in the meeting notes and post the list at the front entrance. Our treasurer owned the accounting firm we used. So they were in attendance to see the vote.

So if you want something "Official" it varies with every HOA. We couldn't offer much actual physical evidence on our votes. Just the meeting notes at best. So not sure what your expecting in regards to proof.

Former HOA President
DanM12
(Georgia)

Posts:20


06/09/2019 9:08 AM  
thanks for the reply

re: appeal
well, there is, and I have, and its pending I suppose

but my view is if they have time to count flowerpots, they've got time to issue financial reports, official minutes, meeting notices, work to achieve quorums at meetings (with proxies if need be), an build consensus for major decisions and policy changes. I don't think that's unreasonable.

sorry, but when you assume a seat on an HOA board, you take on certain fiduciary duties.... ;)
MelissaP1
(Alabama)

Posts:8184


06/09/2019 9:13 AM  
Well who says they haven't? Plus they are to allow you to just VIEW not provide copies. It sounds like the hired the MC to handle this. Not unusual because the ONLY requirement to be on the board or in a HOA is to be a homeowner. Your asking a bit too much of an "average Joe" who is VOLUNTEERING their time/energy to be all of that knowledgeable.

Have you attended a meeting? They should be posted. For someone so concerned about deflecting their flowerpot issue, doesn't sound like your very active in your HOA.

Former HOA President
NpS
(Pennsylvania)

Posts:3364


06/09/2019 9:59 AM  
Posted By DanM12 on 06/08/2019 8:25 PM
(until I went to the 2017 meeting...where I had to teach the meaning of the word "quorum", and read them the section of the covenants that says they have to mail out notices every year...



Good for you. You really showed those jackasses a thing or 2.


Posted By DanM12 on 06/08/2019 8:25 PM
now they've hired an aggressive MC who's basically a friend of a former board member, and they're sending all kinds of violation notices out,



Awwww. So they didn't like being showed up at the meeting. So they brought in someone who wouldn't be intimidated.


Posted By DanM12 on 06/08/2019 8:25 PM
The situation isn't dire. The neighborhood is pretty nice, property values have never been higher around here to my knowledge. The new people just seemed to think it was a good idea to invite a MC to give us unnecessary petty violation notices.



Looks to me like, if things were ok to begin with, maybe there are some fences to mend. Who's going to take the first step? Who should?

Lesson to learn: If proper policy isn't being followed but things seem to be ok, maybe a different approach would yield different results.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
DanM12
(Georgia)

Posts:20


06/09/2019 10:14 AM  
well, I get that


I would settle for the official minutes, recorded at the time in a document written by the secretary, kept in their records and published (or made available on their website)
a simple notation that a vote was taken, or just Bob raised his hand an became President, or whatever happened

That's just basic; they haven't even done that, and that's required by the covenants and Georgia code, to my knowledge.

"We put it down in the meeting notes and post the list at the front entrance."

I'm pretty sure they've never done even as simple as that


is that an unreasonable expectation?
DanM12
(Georgia)

Posts:20


06/09/2019 10:21 AM  
seems to me, the only difference between an HOA and a bunch of nosy neighbors that want to tell you how to live is the paperwork...
MelissaP1
(Alabama)

Posts:8184


06/09/2019 10:26 AM  
The very paperwork your demanding on seeing at that! LOL!

Former HOA President
DanM12
(Georgia)

Posts:20


06/09/2019 10:28 AM  
"Have you attended a meeting? They should be posted"

yeah, I mentioned that in the original post. Don't know if you read it.

I only went to the one; I wasn't receiving notices about them, because they weren't mailing them out, per the bylaws
that was one of my chief issues

"Your asking a bit too much of an "average Joe" who is VOLUNTEERING their time/energy to be all of that knowledgeable. "

well actually, the covenants, and the bylaws, and the state code is requiring those actions from them
that should be explained in some detail when one assumes that role

they should be expected to have read all the documents once, at the least


that's the bulk of my complaint



RichardP13
(California)

Posts:3596


06/09/2019 10:39 AM  
Posted By DanM12 on 06/09/2019 10:28 AM
"Have you attended a meeting? They should be posted"

yeah, I mentioned that in the original post. Don't know if you read it.

I only went to the one; I wasn't receiving notices about them, because they weren't mailing them out, per the bylaws
that was one of my chief issues

"Your asking a bit too much of an "average Joe" who is VOLUNTEERING their time/energy to be all of that knowledgeable. "

well actually, the covenants, and the bylaws, and the state code is requiring those actions from them
that should be explained in some detail when one assumes that role

they should be expected to have read all the documents once, at the least


that's the bulk of my complaint






Apparently, they do things differently in her neck of the woods.

Been there, Done that
MelissaP1
(Alabama)

Posts:8184


06/09/2019 10:58 AM  
A LOT of assumptions and putting things on other people... Sorry to ruin your universe but reality is what it is. The reality is that Mailing notices takes money. It's not free to put a notice in the mail. It also takes someone willing to volunteer to print out the notices, put them in envelopes, and stamp them. It doesn't happen by "Magic". If your HOA is broke, they aren't going to waste money on a 35 cent stamp. That's like $35 for 100 homes....

Who says one needs to have some kind of experience or read the rules? There's no rule that says one has to have READ a document or have any kind of experience. That is just wishful thinking. Most HOA's I know don't even bring a copy of the rules to a meeting. Never the less actually have people that read them. Most are even beyond understanding/translating.

Your HOA hiring a MC seems to be them making an attempt to get things more in a row and more professional. The MC is the resource that has to be experienced, licensed, and insured. They don't necessarily need to read the rules either as they aren't actual members. Go figure...

My recommendation. Stop ASSUMING things or putting responsibilities on people that may not exist. I'd like to think my HOA board was highly educated well experienced individuals with a well rounded legal and corporate education. The truth? They were just the people who showed up to the election meeting and raised their hand...

Former HOA President
DanM12
(Georgia)

Posts:20


06/09/2019 11:03 AM  
yeah, I'm getting that sense...
RichardP13
(California)

Posts:3596


06/09/2019 11:07 AM  
Posted By MelissaP1 on 06/09/2019 10:58 AM
Who says one needs to have some kind of experience or read the rules? There's no rule that says one has to have READ a document or have any kind of experience. That is just wishful thinking. Most HOA's I know don't even bring a copy of the rules to a meeting. Never the less actually have people that read them. Most are even beyond understanding/translating.
SERIOUSLY?

Your HOA hiring a MC seems to be them making an attempt to get things more in a row and more professional. The MC is the resource that has to be experienced, licensed, and insured. They don't necessarily need to read the rules either as they aren't actual members. Go figure...





Been there, Done that
RichardP13
(California)

Posts:3596


06/09/2019 11:08 AM  
Posted By MelissaP1 on 06/09/2019 10:58 AM


Your HOA hiring a MC seems to be them making an attempt to get things more in a row and more professional. The MC is the resource that has to be experienced, licensed, and insured. They don't necessarily need to read the rules either as they aren't actual members. Go figure...PLEASE TELL US YOU'RE FIGHTING A NASTY HANGOVER




Been there, Done that
AugustinD


Posts:1631


06/09/2019 11:12 AM  
Posted By DanM12 on 06/09/2019 8:56 AM
The covenants and architectural guidelines are silent as to the correct number of flowerpots.

I found that petty, but of little consequence.

Whether or not I have the correct number of flowerpots has no bearing on the fact that the HOA board is not fulfilling their fiduciary duties, or has not been properly seated.
That's the main issue, in my view.

How do I make them prove they've been properly seated on the HOA?

I would think they should be able to provide records of the elections, minutes of the meetings as a prerequisite to claiming their authority to hiring the MC without a membership vote?


If this Board is also making up rules inconsistent with the covenants, then this is also a problem, as it appears you know too well.

First, you want to familiarize yourself with your HOA's sections on remedies and enforcement. If you post them here, some readers may be able to finger quickly the pertinent sections to getting remedies to your quite valid concerns.

Second, familiarize yourself with the Georgia Property Owners' Association Act, Georgia statute 44-3-220 et seq. See https://advance.lexis.com/container/?pdmfid=1000516&crid=d3e430d9-32db-4689-95df-751f246bab80&func=LN.Advance.ContentView.getFullToc&nodeid=ABSAAEAAH&typeofentry=Breadcrumb&config=00JAAzZDgzNzU2ZC05MDA0LTRmMDItYjkzMS0xOGY3MjE3OWNlODIKAFBvZENhdGFsb2fcIFfJnJ2IC8XZi1AYM4Ne&action=publictoc&pddocfullpath=%2Fshared%2Fdocument%2Fstatutes-legislation%2Furn%3AcontentItem%3A5VTJ-6D00-004D-81NG-00008-00&pdtocfullpath=%2Fshared%2Ftableofcontents%2Furn%3AcontentItem%3A7YJ8-39M0-Y905-D000-00008-00&ecomp=bs4fkkk&prid=28694857-a4cf-41f8-9570-e3b73a3c70c2

In particular, I think Georgia statute 44-3-223 may be your most powerful legal cudgel (if needed). It requires every member to comply with the governing documents (Bylaws, Declaration, et cetera). Case law generally says member includes directors.

Third, write a 'demand letter lite' that reads something like the following:

--------------------------------------
Dear Green Acres HOA Directors,

Covenant ____ requires notices of the annual meeting to be sent out at least ___ days before the annual meeting. State statute _____ also requires this.

Covenant ____ requires the following financial reports to be presented at the following meetings __________________ . State statutes _____ also has requirements for financial reports.

When a quorum is not present at the annual meetings, covenant _____ requires _____. State statute further requires ______.

Before August 1, would you please indicate your intention to comply with these covenant and state requirements?

Thank you,

Dan _____
Member, Green Acres HOA
___ Meadows Street
____, Georgia ___
phone: __________
email: ____________
-------------------------------------

Send this letter certified mail, return receipt requested to the official agent for the HOA (the management company, most likely). Give the board until August 10 to respond. If they do not respond, report back here. Suggestions for elevating the tone of the next demand letter will hopefully be offered. The goal is to give you the best chances of getting what you understandably want without starting a war or having to pay an attorney and threaten suit. Though it may come to this.

For what it is worth, it is common for HOAs to be run by amateurs who never read the governing documents and do things off-the-top-of-their-heads because they have no clue as to their legal obligations and that the governing documents, and not the directors, for the greater part determine how a HOA is to be run.

Fourth, I suggest you plan to run for the board with a like-minded group who can win a majority.
DanM12
(Georgia)

Posts:20


06/09/2019 11:17 AM  
"Looks to me like, if things were ok to begin with, maybe there are some fences to mend. Who's going to take the first step? Who should?

Lesson to learn: If proper policy isn't being followed but things seem to be ok, maybe a different approach would yield different results. "

yeah, good questions.
I don't want to be unreasonable, but the covenants and laws go both ways

there really isn't a crisis here

if Zillow and the recent tax assessment are to be believed, my home value has increased somewhere between $50-100k in the decade I've lived here
I assume that's pretty much the case for the neighborhood
we have $100k in the HOA reserves
the neighborhood is pretty nice


if there was a reason for major policy shift, they should have made the case to the members
they failed to even get a quorum at that meeting where it was to be decided, and did it anyway, without disclosing the costs or the specific rationale, other than the president was tired of doing the chores, I guess...

we could probably benefit from an injection of professionalism in the way the HOA runs things, but it should be done in the light of day, (or in the "Sunshine" as the relevant state laws are called)


that's the crux of my objection

If I can help find a middle way, I think that's the ultimate goal here

thanks to all who responded so far, its helping me shape my thinking on this matter
DanM12
(Georgia)

Posts:20


06/09/2019 11:25 AM  

I'm thinking something like that as a strategy


this is actually our first house, so I'm actually pretty new to this HOA business
I did invest an hour or two reading the docs, and googling some stuff
which is more than these guys did, obviously

that's how I found this site, which is gold for these kind of issues I'm seeing

thanks for the thoughtful reply and suggestions
NpS
(Pennsylvania)

Posts:3364


06/09/2019 11:55 AM  
One time, a homeowner came up to me and said: "You know I'm a person who follows the rules, and I intend to follow every one of them --- except for this particular rule which I don't agree with."

I remember thinking to myself: "What if we gave everyone the option to ignore just one rule of their choosing?"

Mine would probably have been to not pay HOA fees.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8347


06/09/2019 2:05 PM  
Dan

What minutes have to contain is date of and place/time of meeting, and who on the BOD was in attendance.

Next is a vote on acceptance of prior meeting minutes.

Next is any Motions made and/or voted on.

Next is the Motion and vote for adjournment.

Minutes do not have to contain list of what was discussed, who said what, etc.

People want minutes to be word for word. They are not intended for such. Anything other than votes are superfluous and if not word for word, the writer of such can influence the tone/direction and quite often away from what was in actuality happening.

Our last BOD meeting was 2 hours long and we had only one Motion and a vote. About 4 lines cover the Motion and vote. We certainly discussed a whole he!! of a lot more about the Motion than 4 lines could cover. We also discussed many other subjects in the 2 hours, none of which should make the minutes.

DanM12
(Georgia)

Posts:20


06/09/2019 2:41 PM  
As to my expectations, I would settle for something like this

https://www.davis-stirling.com/HOME/Meeting-Minutes


What to Include. As a rule, minutes should record what was done at a meeting, not what was said. (Robert's Rules, 11th ed., p. 468.) Even so, the motion should include the rationale for the board's action. Following is a list of essential information that should be found in every set of minutes:

Name of the Association.
Type of Meeting. Regular, special, emergency, executive session.
Date/Time/Location. Date, time and location of meeting.

Attendees. Directors who were present and who was absent, along with their titles (President, Treasurer, etc.). The minutes should also list guests who were invited to speak to the board, such as the association's CPA, contractors bidding on projects, the association's attorney, etc. Persons who attend the meeting need not be listed in the minutes. (If their names are included in the minutes, they could be subpoenaed for a deposition in the event there is litigation surrounding the meeting.) Instead of attendee names, some associations list the total number of attendees at the meeting. This is not required but is optional.

Approval of Minutes. Prior meeting minutes should be read and approved. (Robert's Rules, 11th ed., p. 473-474.)

Treasurer's Report. A verbal report is sufficient.

Committee Reports. The fact that an officer and committee report, if any, was given. When a committee report is of great importance it can be entered in full in the minutes. (Robert's Rules, 11th ed., p. 471.)

Guest Speakers. "The name and subject of a guest speaker can be given, but no effort should be made to summarize his remarks. (Robert's Rules, 11th ed., p. 471.)
Motions. Motions and how directors voted.

Executive Session. General description of matters discussed in executive session.

Next Meeting. Date of the next meeting.
Adjournment. Time the meeting was adjourned.

NOTE: Because the Business Judgment Rule requires that boards satisfy their fiduciary duties when making decisions, boards should include in their minutes reasons why they took the actions they did. See sample resolution.
GenoS
(Florida)

Posts:2960


06/09/2019 4:26 PM  
Posted By JohnC46 on 06/09/2019 2:05 PM
Our last BOD meeting was 2 hours long and we had only one Motion and a vote. About 4 lines cover the Motion and vote. We certainly discussed a whole he!! of a lot more about the Motion than 4 lines could cover. We also discussed many other subjects in the 2 hours, none of which should make the minutes.

We had a board meeting last month where the board wanted to discuss several upcoming projects that have been proposed and decisions that had to be made soon. All directors were gathered to discuss association business so, by definition, it was a board meeting. A lot was discussed but no motions were made nor were any votes taken. The minutes were very sparse for a 90-minute meeting. Regarding what was discussed, the board members were arguably better prepared to make motions and vote on them at the next meeting, so purpose achieved.
DanM12
(Georgia)

Posts:20


06/12/2019 10:20 AM  
I would think the election/selection of new officers and the hiring of a 3rd party management company (for the first time since the HOA was started, 25 years ago would be worth mentioning in the minutes...even if the details were "sparse"
JohnC46
(South Carolina)

Posts:8347


06/12/2019 12:28 PM  
Posted By DanM12 on 06/12/2019 10:20 AM
I would think the election/selection of new officers and the hiring of a 3rd party management company (for the first time since the HOA was started, 25 years ago would be worth mentioning in the minutes...even if the details were "sparse"




I agree especially hiring the MC as that should require a Motion to do so.
DanM12
(Georgia)

Posts:20


06/18/2019 12:38 PM  
UPDATE

I sent in my appeal letter by certified mail to the HOA, c/o the MC

Subsequently, I had an hour long phone conversation with the new Secretary, who basically confirmed my suspicions about the HOA. He admitted that the HOA has no records of any minutes from any meeting at any point in time since its founding in 1994. He also admitted that until last year, it had been a long time since a notice of a meeting has been mailed out, at least a decade. He can't remember any election ever taking place in the history of the HOA.

So I asked for a hearing/meeting with the board. The objective: partly to dicker about the pettiness of the notices I received, but mostly to rake them over the coals about how incompetently matters have been handled here. I pointed out that they have a fair amount of personal legal exposure; operating outside the regulations of a corporation such as an HOA can make those people individually liable for their actions.

I do think they should be working in good faith to get a quorum for the next annual meeting, even if by proxy. I have an issue with a "board" who's never been elected, making major decisions without ratification from the members. I'm going to tell them they should act as a temporary caretaker board until they (or someone else gets duly elected). I still want to review the contract with the MC;I think this issue should be voted on by the general membership/

My hope is to hammer out a good faith compromise and get the them to agree to some version of the board member pledge someone posted here earlier, i.e., read the docs, send out notices, keep minutes of all meetings, hold proper elections, etc... (which I think should just be common sense, but judging from some of the responses I've seen here, such things are more common than I would've guessed...). If they take no action on this front, then I suppose we'll have to consider some other way to proceed.

thanks for all the helpful feedback thus far, will keep you posted...


JohnC46
(South Carolina)

Posts:8347


06/18/2019 1:05 PM  
Dan

To clarify one point. Typically owners do not get to vote on BOD issued contracts such as an MC Landscape service, etc. The way it typically works is the BOD will solicit proposals from several companies then the BOD will make the decision. Having owners vote can really slow the process down and most have no idea what they are voting on.
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