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Subject: Why do HOAs bully owners and expect to win?
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PaulJ6
(New York)

Posts:319


09/07/2019 5:36 PM  
In my HOA, there was a public dispute between the HOA board and an owner, a lawyer. It ended up in court. The owner won in litigation.

So now my HOA has a judgment against it. This could have been avoided; the owner-lawyer is a well-known lawyer in the community, with a fancy law degree and decades of practicing law. He's the A-list among lawyers. He won a judgment that is several times higher than what he had demanded before.

Surely the HOA could have seen this coming; each time the owner-lawyer had fought with the HOA before, he had won and forced the HOA to change its ways, although things never went to court before.

So what's the mentality of HOAs who pick battles that they won't win? They levy fines, call hearings and place liens, even when their legal position is shaky, and even when their adversary is a lot angrier and a lot sharper than the HOA's lawyer.

Thanks.

MelissaP1
(Alabama)

Posts:8601


09/07/2019 6:00 PM  
The ONLY requirement to be a HOA member is to own a home. You then get a group of apathetic owner who just let MC's or Volunteers who got elected to the board run the place... You get what you get. A HOA is just a bunch of group decisions that may or may not be made by micro-managers or the clueless.

I see people posting more concerns about "Preventing" a lawsuit than using LOGIC in addressing the issue. Never live in fear of a lawsuit and let it control you. It means whomever threatens to sue you has the power over you. My approach has always been your going to be sued or threatened to be sued at some point. Figure out the worst case scenario and go from there how to resolve it. It may require a court decision or a change in the HOA rules. A court can ONLY make one "Whole". Is that a request to be made "Whole" worth the effort?

Former HOA President
SheliaH
(Indiana)

Posts:2701


09/07/2019 6:03 PM  
I'd like to know who started the recent skirmish. It's true some boards get into trouble because they don't like to be challenged (we are the board and and therefore we are), but cooperation works both ways. Does this owner not realize the publicity these battles get can also make him look bad? Who's to say someone doesn't look at this story and think this is yet another too big for britches attorney loading over everyone else because HE went to law school and makes buckets of money,knows everyone worth knowing in town, etc., etc?I


As Melissa likes to say there is no us and them in a HOA (or maybe that was Pink Floyd?).
HOAs are made up of people and none of them are perfect. Some are more hardheaded than others and there may be brilliant people who are masters at getting people to cooperate. The .trick is to find the good ones and try to keep the others from causing too much of a ruckus. Everyone has to understand they didn't just buy a house, they bought into a neighborhood and it takes everyone working together to make it work Both sides have to be willing to listen instead of running off at the mouth and perhaps count to 10 or 100 before saying or doing something awful because some refused to keep his/her ego in check and focus on solving the problem

PaulJ6
(New York)

Posts:319


09/07/2019 6:20 PM  
Posted By MelissaP1 on 09/07/2019 6:00 PM
A court can ONLY make one "Whole". Is that a request to be made "Whole" worth the effort?




Great points and I agree with you.

I should point out that in this case the owner won punitive damages against the HOA and was awarded legal fees so he made a profit, in addition to being made whole.
PaulJ6
(New York)

Posts:319


09/07/2019 6:22 PM  
Posted By SheliaH on 09/07/2019 6:03 PM
Does this owner not realize the publicity these battles get can also make him look bad? Who's to say someone doesn't look at this story and think this is yet another too big for britches attorney loading over everyone else because HE went to law school and makes buckets of money,knows everyone worth knowing in town, etc., etc?I




Great points as well. Thanks.

In this case, the owner won, and won big. The HOA has its own attorney. And the HOA has plenty of big shots in it. I’m not one of them, unfortunately.
SheliaH
(Indiana)

Posts:2701


09/07/2019 6:39 PM  
Well, congratulations to him or her. But what happens now? I'm sure some (many?) H
homeowners will not be thrilled at what this will do to assessments and Zack the board or at least some of them. But talk will replace them, because I can see people being intimidated enough not to run because this owner may get passed off about something else in the future and she again. Then what happens to the association - you still need a spare to run it.

Maybe this owner might consider volunteering him/herself or perhaps offer to work on an advisory committee to take a deep dive into stuff like rule enforcement of the exterior chant review process and make recommendations. He might learn something or at least get a better understanding of what the board has to deal with.



RichardP13


Posts:0


09/07/2019 6:46 PM  
Posted By PaulJ6 on 09/07/2019 5:36 PM
In my HOA, there was a public dispute between the HOA board and an owner, a lawyer. It ended up in court. The owner won in litigation.

So now my HOA has a judgment against it. This could have been avoided; the owner-lawyer is a well-known lawyer in the community, with a fancy law degree and decades of practicing law. He's the A-list among lawyers. He won a judgment that is several times higher than what he had demanded before.

Surely the HOA could have seen this coming; each time the owner-lawyer had fought with the HOA before, he had won and forced the HOA to change its ways, although things never went to court before.

So what's the mentality of HOAs who pick battles that they won't win? They levy fines, call hearings and place liens, even when their legal position is shaky, and even when their adversary is a lot angrier and a lot sharper than the HOA's lawyer.

Thanks.




From experience, it not the HOA Board, it is the attorneys representing them, that are the problem.
SheliaH
(Indiana)

Posts:2701


09/07/2019 6:46 PM  
Whew, it's hard to type on tablets! What I was trying to say was both sides need to consider what needs to be done to heal the wounds -no floating about winning or whining and plotting revenge because you lost. Both sides need to ponder how and why it came to this and how to prevent it from escalating next time

if this homeowner has won before, perhaps he/she should considering volunteering to assist the board in something or run for a spot too often we only see things based on how it affects only is and not take the wider view -and both sides can be guilty of that
JohnC46
(South Carolina)

Posts:8730


09/08/2019 9:27 AM  
Paul

Seems you need a "better" BOD. Work on that.
CathyA3
(Ohio)

Posts:459


09/08/2019 3:26 PM  
I have a different question. Why is that the homeowners who believe they know best and are determined to challenge the board - and this seems to happen whether the board knows what it's doing or not - why do these homeowners never, ever, serve on the board themselves and give the HOA the benefit of their expertise?

Yeah, I know, too busy, health problems, etc., etc., etc. But the bottom line is, if the people who claim to know what they're doing refuse to serve, why are they so surprised about the consequences of that decision?
PaulJ6
(New York)

Posts:319


09/08/2019 3:31 PM  
Posted By CathyA3 on 09/08/2019 3:26 PM
I have a different question. Why is that the homeowners who believe they know best and are determined to challenge the board - and this seems to happen whether the board knows what it's doing or not - why do these homeowners never, ever, serve on the board themselves and give the HOA the benefit of their expertise?

Yeah, I know, too busy, health problems, etc., etc., etc. But the bottom line is, if the people who claim to know what they're doing refuse to serve, why are they so surprised about the consequences of that decision?




In some cases, they offer and the board doesn't like them and refuses their offer.
PaulJ6
(New York)

Posts:319


09/08/2019 3:40 PM  
Actually, I'll go further: HOA boards despise people who challenge them and their ways, in my view, and HOA boards will do everything possible to block those people from joining the board. So criticize a board and, however skilled you are and however bad the board is, you won't be joining that board unless you spend the time gathering support from other owners to be voted onto the board, with the board doing what it can to stop you. Most people obviously won't go to that effort.
CathyA3
(Ohio)

Posts:459


09/08/2019 3:55 PM  
Posted By PaulJ6 on 09/08/2019 3:40 PM
Actually, I'll go further: HOA boards despise people who challenge them and their ways, in my view, and HOA boards will do everything possible to block those people from joining the board. So criticize a board and, however skilled you are and however bad the board is, you won't be joining that board unless you spend the time gathering support from other owners to be voted onto the board, with the board doing what it can to stop you. Most people obviously won't go to that effort.




Certainly that happens. In such cases, then, the challenger needs to decide whether the issue is worth the effort. if it isn't, then maybe the challenger should reconsider. If the person who believes he is right about an important issue isn't willing to put in the effort, why should anyone else take him seriously?

The lawsuit often is an attempt to bully the board into doing things your way, and the homeowners all pay the price, literally. Unless the board is doing something so badly wrong that their errors will cost the HOA more money than they'll spend in litigation, then the lawsuit will make the HOA worse, not better. And the victor in the lawsuit should not be surprised if nobody throws a parade in his honor.
PaulJ6
(New York)

Posts:319


09/08/2019 4:02 PM  
True. In this case, the owner got awarded punitive damages and lawyers' fees from the HOA, indicating that the HOA did something that was pretty bad.

Clearly the HOA was thus in the wrong, and affluent type-A people, which my HOA is full of, are less likely to quietly be screwed over than the general populace would be, and as the HOA learned, such people have the resources to go after those who screw them over. Thus I don't know why the HOA board would have played a weak hand in this situation- it got its head handed to it, and surely that could have been avoided.
MelissaP1
(Alabama)

Posts:8601


09/08/2019 4:23 PM  
Why do you think I advise people when they hire a lawyer to be wary of one that says "I will do whatever you tell me to do"? That lawyer is feeding the board's own fallacy. Once believed it's hard to get out.

Again you are dealing with a group of people. Each one has an opinion on which way to go. You have a lawyer they hired because it's their profession to do the job. Little do the understand the situation or the options.

Not hating on lawyers. It's just anyone who has dealt with a few have learned why the profession gets it's reputation. Lawyers hated dealing with me because I understood their job. If I felt one was leading me, I'd halt the reigns and say "Wooh". You can't expect everyone to be like that. Especially if you believe you hired the best in the business to represent you.

Former HOA President
PaulJ6
(New York)

Posts:319


09/08/2019 4:25 PM  
Posted By MelissaP1 on 09/08/2019 4:23 PM
Why do you think I advise people when they hire a lawyer to be wary of one that says "I will do whatever you tell me to do"?




I agree with you 100%. No lawyer should ever say "I will do whatever you tell me to do"- such a lawyer may violate the law, ethical rules, etc. in doing "whatever" the client "tells" the lawyer "to do".
TimM11


Posts:302


09/09/2019 7:27 AM  
Posted By PaulJ6 on 09/07/2019 5:36 PM

So what's the mentality of HOAs who pick battles that they won't win? They levy fines, call hearings and place liens, even when their legal position is shaky, and even when their adversary is a lot angrier and a lot sharper than the HOA's lawyer.




Pride and stubbornness, much of the time. It's not just limited to HOAs, either -- I've seen the same type of behavior in the business world, and this from professionals who really ought to know better.
PestY


Posts:0


09/09/2019 11:56 AM  
accurate answer:


because, most times, they can and WILL win



most times
SheliaH
(Indiana)

Posts:2701


09/09/2019 12:19 PM  
Indeed. As I said earlier, people are people and that’s what HOAs are made of. There is only you and me in a HOA, and bad board members don’t fall out of the sky. Some are like this at the start because this is a way for them to get power or the appearance of the same. Others don’t know what they don’t know and don’t seem to want to find out, so they make up stuff as they go along, then get mad when you ask questions and they can’t answer them. The others are too intimidated to speak up – some of them wound up on the board because the one or two people who often dominate board meetings needed a body to make quorum and they can get away with anything if that body sits there quietly and ok to whatever’s being proposed, no matter how ridiculous it sounds. It’s also easy for one or two board members to dominate everyone else and God help you if those two (or one) is a megalomaniac and refuses to listen (just like our President.)

And because HOA board members come from homeowners, we also have the owners (you know who they are) who think concepts like cooperation are for suckers. They’re not interested in finding a way to resolve the problem, they’d rather say and do whatever they say and do, no matter what it does to the community in the end. It doesn’t matter if the owner is a big time attorney or a ditch digger. How many times have people come to this board with their mind already made up and then get mad when you ask a few questions that reveal they’re really full of ….horse dooky?

This is why you can’t be afraid to speak truth to power and hold yourself and your neighbors responsible. You have bad boards because people let them get away with uncouth behavior – you may not be able to get rid of them by yourself, which is why you need to rally together your neighbors. Maybe this owner would have saved some time and money if he’d done that instead of sue the pants off the association. Yes, he won and might have deserved it, but how will the neighbors react when they found how much this will cost them? Hopefully, they won’t be inclined to do anything worse than sack the board for being too stubborn for their own good.

And that is why I’m a believer in Board education, which shouldn’t stop after you’ve read the documents. If you don’t have a clue about how things work, that’s ok, but it’s your responsibility to go and find out. Keep an open mind and remember just because you don’t like something doesn’t mean it’s not reality. Change the stuff you can change and find a way to live with the stuff you can’t. Above all, try to be the type of neighbor you want living next door or across the street from you. “Do under others as you would have them do unto you” is a start, as opposed to “do unto others before they have a chance to do unto you.”

NpS
(Pennsylvania)

Posts:3758


09/10/2019 12:39 PM  
I'm wondering. What was the behavior that warranted an award of punitive damages?

Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:319


09/10/2019 12:55 PM  
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?




Breach of fiduciary duty.
CathyA3
(Ohio)

Posts:459


09/10/2019 1:49 PM  
Posted By PaulJ6 on 09/10/2019 12:55 PM
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?


Breach of fiduciary duty.




That covers a lot of territory. Can you add more detail without revealing things that need to be confidential?
PaulJ6
(New York)

Posts:319


09/10/2019 2:56 PM  
Posted By CathyA3 on 09/10/2019 1:49 PM
Posted By PaulJ6 on 09/10/2019 12:55 PM
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?


Breach of fiduciary duty.




That covers a lot of territory. Can you add more detail without revealing things that need to be confidential?




Yes, the board singled out the owner and harassed the owner and did all sorts of nasty things to the owner.

The owner responded by going after the board.

The owner won.
NpS
(Pennsylvania)

Posts:3758


09/10/2019 3:14 PM  
Posted By PaulJ6 on 09/10/2019 2:56 PM
Posted By CathyA3 on 09/10/2019 1:49 PM
Posted By PaulJ6 on 09/10/2019 12:55 PM
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?


Breach of fiduciary duty.


That covers a lot of territory. Can you add more detail without revealing things that need to be confidential?


Yes, the board singled out the owner and harassed the owner and did all sorts of nasty things to the owner.

The owner responded by going after the board.

The owner won.


Wow.

"Singled out."

"Harassed."

"Nasty things."

That certainly justifies a judge imposing punitive damages.

Or does it?

Why is it so difficult to get some details on the events that took place?

Sikubali jukumu. Read all posts at your own risk.
MelissaP1
(Alabama)

Posts:8601


09/10/2019 3:28 PM  
There is criminal behavior involved it sounds like. However, it being incorporated it was probably hard to "Pick straws" who did the jail time. So the Judge decided it best to give punitive damages to punish all. Too bad it also included the homeowners who probably had no clue this was going on.

Former HOA President
PaulJ6
(New York)

Posts:319


09/10/2019 5:29 PM  
Posted By NpS on 09/10/2019 3:14 PM
Posted By PaulJ6 on 09/10/2019 2:56 PM
Posted By CathyA3 on 09/10/2019 1:49 PM
Posted By PaulJ6 on 09/10/2019 12:55 PM
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?


Breach of fiduciary duty.


That covers a lot of territory. Can you add more detail without revealing things that need to be confidential?


Yes, the board singled out the owner and harassed the owner and did all sorts of nasty things to the owner.

The owner responded by going after the board.

The owner won.


Wow.

"Singled out."

"Harassed."

"Nasty things."

That certainly justifies a judge imposing punitive damages.

Or does it?




Well, the judge did, and I know nothing about an appeal by the HOA, so that's the law.
NpS
(Pennsylvania)

Posts:3758


09/10/2019 9:28 PM  
Posted By PaulJ6 on 09/10/2019 5:29 PM
Posted By NpS on 09/10/2019 3:14 PM
Posted By PaulJ6 on 09/10/2019 2:56 PM
Posted By CathyA3 on 09/10/2019 1:49 PM
Posted By PaulJ6 on 09/10/2019 12:55 PM
Posted By NpS on 09/10/2019 12:39 PM
I'm wondering. What was the behavior that warranted an award of punitive damages?


Breach of fiduciary duty.


That covers a lot of territory. Can you add more detail without revealing things that need to be confidential?


Yes, the board singled out the owner and harassed the owner and did all sorts of nasty things to the owner.

The owner responded by going after the board.

The owner won.


Wow.

"Singled out."

"Harassed."

"Nasty things."

That certainly justifies a judge imposing punitive damages.

Or does it?


Well, the judge did, and I know nothing about an appeal by the HOA, so that's the law.



Once again, you provide no facts. Without a description, you could be talking about any type of behavior. To me, it's just not informative. And thus, your question on why HOAs pursue claims that they lose seems way too nebulous to me and possibly others.

If you said that the board members took turns parking in the harassed owners driveway every hour on the hour during the night and honked their horns - That would be a fact that I could understand.

But when you say bully and then harassed and then nasty and then singled out - that could be absolutely anything. And saying that the facts (whatever they were) were good enough for a judge doesn't clarify.

As always, I'm interested in the severity of the issues. I guess I'm just wasting my time asking.

Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:319


09/10/2019 11:00 PM  
NpS, giving more specifics would give away the HOA.
SamE2
(New Jersey)

Posts:162


09/11/2019 4:11 AM  
Posted By PaulJ6 on 09/10/2019 11:00 PM
NpS, giving more specifics would give away the HOA.





It would not give it away to me and I doubt most on this site. Maybe some that were into doing research but then that is not really giving it away. Sometimes the judges get it wrong, like in the Brock Turner caser.
CathyA3
(Ohio)

Posts:459


09/11/2019 5:18 AM  
Posted By PaulJ6 on 09/10/2019 11:00 PM
NpS, giving more specifics would give away the HOA.




If it would, that suggests that there is public information available on the web. As far as I know, we're allowed to discuss such information on this site - in fact we have done so in the recent past (court cases involving Fair Housing violations and negligence).

So...

Harassment, singled out, nasty comments: board members are on the receiving end of that sort of behavior all the time. It sort of comes with the territory, although we wish it wouldn't, and of course it doesn't justify returning fire on jerk homeowners (that just makes it worse, usually).

We still have no way of telling what made this case so unusual that it deserved punitive damages, assuming it even did. As others noted, judges do get things wrong occasionally.

#NotConvinced


PaulJ6
(New York)

Posts:319


09/11/2019 5:58 AM  
The court filing should be public but it doesn’t come up in Google yet, at least not in the first few pages of search results. So I’m not willing to post more. Better to share too little than too much.
NpS
(Pennsylvania)

Posts:3758


09/11/2019 6:31 AM  
Here's a set of facts. It's for those of you who prefer some meat on the bone. It's not from one case. But it's all true. I've merely combined information from several cases. Here we go. Let me know what you think of the bully, whoever that is. And also - Which of the BOD's decisions were bad decisions?

Homeowner plants bamboo in his yard without approval. Bamboo spreads like weeds into the common area. The HOA docs specifically state that the HOA is responsible for keeping all common areas clear of invasive plants like bamboo. HOA does nothing to clear the bamboo. Instead, the HOA fines the homeowner who planted the bamboo. The fine is for $X per day until the homeowner clears all the bamboo.

Homeowner is a hotshot lawyer from a big firm. His firm donates aggressively to political office seekers, especially judges they like. The homeowner sues the HOA for breach of fiduciary duty. The case gets assigned to a judge who plays golf every Wednesday with the homeowner's brother-in-law who is a well-respected doctor in the local community.

The judge rules that, because "bamboo" was specifically stated in the HOA docs, the HOA violated its fiduciary duties. Punitive damages were awarded to the homeowner against both the HOA and against the individual BOD members.

This was the HOA's first lawsuit. After 18 months, the BOD members were exhausted and emotionally drained. The lawsuit had taken up so much of their time. Some were losing sleep. Very little was getting done on behalf of the HOA. Many were ready to resign. Some were infuriated at the way the homeowner gloated about how much smarter he was than anyone else.

The BOD made the decision not to appeal. They didn't want to waste another year of their time and energy. Some wanted to keep on fighting. But the majority said that they had enough. The homeowner gloated some more.

Sikubali jukumu. Read all posts at your own risk.
PestY


Posts:0


09/11/2019 9:03 AM  
.....
(1) - The HOA docs specifically state that the HOA is responsible for keeping all common areas clear of invasive plants like bamboo.
(2) - HOA does nothing to clear the bamboo.
(3) - Instead, the HOA fines the homeowner who planted the bamboo.
.....


1 - contractual fact
2 - HOA violated contract through inaction
3 - if fined for not getting approval, OK - if fined for planting a plant NOT SPECIFICALLY restricted, BAD

but

the HOA's hands were 'unclean' in that it ALSO breached the contract
MarkW18
(Florida)

Posts:121


09/11/2019 9:34 AM  
Posted By NpS on 09/11/2019 6:31 AM
Here's a set of facts. It's for those of you who prefer some meat on the bone. It's not from one case. But it's all true. I've merely combined information from several cases. Here we go. Let me know what you think of the bully, whoever that is. And also - Which of the BOD's decisions were bad decisions?

Homeowner plants bamboo in his yard without approval. Bamboo spreads like weeds into the common area. The HOA docs specifically state that the HOA is responsible for keeping all common areas clear of invasive plants like bamboo. HOA does nothing to clear the bamboo. Instead, the HOA fines the homeowner who planted the bamboo. The fine is for $X per day until the homeowner clears all the bamboo.

Homeowner is a hotshot lawyer from a big firm. His firm donates aggressively to political office seekers, especially judges they like. The homeowner sues the HOA for breach of fiduciary duty. The case gets assigned to a judge who plays golf every Wednesday with the homeowner's brother-in-law who is a well-respected doctor in the local community.

The judge rules that, because "bamboo" was specifically stated in the HOA docs, the HOA violated its fiduciary duties. Punitive damages were awarded to the homeowner against both the HOA and against the individual BOD members.

This was the HOA's first lawsuit. After 18 months, the BOD members were exhausted and emotionally drained. The lawsuit had taken up so much of their time. Some were losing sleep. Very little was getting done on behalf of the HOA. Many were ready to resign. Some were infuriated at the way the homeowner gloated about how much smarter he was than anyone else.

The BOD made the decision not to appeal. They didn't want to waste another year of their time and energy. Some wanted to keep on fighting. But the majority said that they had enough. The homeowner gloated some more.



Seriously, you made people read that?
SheliaH
(Indiana)

Posts:2701


09/11/2019 11:53 AM  
Posted By PaulJ6 on 09/10/2019 11:00 PM
NpS, giving more specifics would give away the HOA.




I’m with Sam and NpS – we don’t need to know the name or location of the HOA, but what’s wrong with you describing the situation as NpS did in his example? Or are YOU the homeowner in question?

You said this person is a well know lawyer in the community with a fancy law degree, blah, blah, blah – are you implying that just because he has the credentials and knows people, he’s automatically right and everyone else is wrong? Sorry, but no, that ain’t true – and as an attorney yourself, you KNOW there are angels and devils on both sides of the issue, and sometimes a person can be both at the same time. I’ve never liked overly broad statements like “HOAs bully homeowners because all the board members care about is power” – that’s the same as saying “all homeowners are just lazy and don’t give a damn about the community.”

These stories you see online or in the newspaper or on TV news about the Godawful HOA board stomping on the "wee liddle homeowner" tend to skim the surface at best. I realize there are disputes where even Ray Charles could see that the situation would have been resolved if people were more willing to listen to each other and not be so bull-headed, but some people are just bullies who love to gloat because they can (for example, I work with lawyers and I’ve seen quite a few behave like this).
PaulJ6
(New York)

Posts:319


09/11/2019 12:54 PM  
Posted By SheliaH on 09/11/2019 11:53 AM
You said this person is a well know lawyer in the community with a fancy law degree, blah, blah, blah – are you implying that just because he has the credentials and knows people, he’s automatically right and everyone else is wrong?




No, definitely not implying that "he's automatically right". All lawyers make mistakes. I sure do.

But a lawyer, particularly one with a reputable law degree or reputable job, is in a position to fight back more than a typical homeowner is. When I was in law school, at least some landlords near campus wouldn't rent to law students because they could fight back (and win) more than others could. So any HOA that wants to do battle with a homeowner with a lawyer should have a strong, defensible position. If the HOA has a relatively weak position, acting towards an owner/lawyer as though the HOA has a strong position (by bullying and using threats) doesn't make sense to me.

I am not the homeowner.
AugustinD


Posts:1934


09/11/2019 3:14 PM  
Posted By PaulJ6 on 09/11/2019 12:54 PM
If the HOA has a relatively weak position, acting towards an owner/lawyer as though the HOA has a strong position (by bullying and using threats) doesn't make sense to me.


In earnest: I think the problem is assuming the board's interest is the law, truth and justice. Too many times now I have observed that, instead, HOA directors' interest is ego validation. Ego validation is normally expensive and requires years of hard work, good choices, and honest conduct. But when a HOA Board has a HOA attorney at its disposal, the cost of ego validation can be passed along to the membership. These dopes can feel elevated because they have an attorney working for them, and they are paying damn little for the attorney. Furthermore when said HOA attorney sees (1) the deep pockets and (2) board members willing to throw away money on validating their egos, said HOA attorney will be happy to do his or her lawyerly duty of defending his or her client to the max (as required by the Rules of Professional Conduct), even if it's legally a bad move.

Some of the best advice I had from a HOA member dealing with a board like Paul describes: It's wrong to assume one can make one's self understood with rogue Boards. With a rogue Board, do not aim for 'being understood.' When communicating with a rogue Board, do not appeal to reason.
NpS
(Pennsylvania)

Posts:3758


09/11/2019 6:46 PM  
Posted By MarkW18 on 09/11/2019 9:34 AM
Seriously, you made people read that?


Absolutely.
I think it's a decent topic, but meaningless if there are no facts to discuss. What attracted me was the award of punitive damages.
Tried to get some facts from the OP several times without success.
So I put together a composite case that came from real case law in which punitive damages were awarded - and I asked people's opinion.
What is your opinion on the questions I asked:
1. Is there bullying going on? And who is doing it?
2. Which of the BOD's decisions were bad decisions?
What's your answer?

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1934


09/11/2019 8:24 PM  
NpS, it looks to me like your bamboo case is Tucciarone v. Hamlet on Olde Oyster Bay Homeowners' Association, New York. It was begun around 2013. (Do be aware that New York weirdly names its trial courts "Supreme Courts.") Seen the 2013 trial court opinion at http://hoapulse.com/court-case-search-results/item/12907-tucciarone-v-hamlet-on-olde-oyster-bay-homeowners-association-inc . See the 2017 appeals court decision at https://www.leagle.com/decision/innyco20171025556. So the HOA Board did appeal the 2013 court decision. The 2017 appeals court agreed with the HOA Board and granted the HOA Board summary judgment. The homeowners lost. No punitive damages were awarded. The appeals court opinion smacked the plaintiffs hard, asserting for one that, "the plaintiffs failed to raise a triable issue of fact. The plaintiffs failed to show that the HOA acted in bad faith or that its actions were taken for any purpose other than to address the bamboo infestation that was admittedly caused by the plaintiffs... "

I was curious about this because it seems like courts never order volunteer HOA members to pay punitive damages in the typical covenants lawsuit. I think Fair Housing lawsuits do order HOAs to pay punitive damages, but even then, I doubt any one member of a board is ordered to pay.

I too am curious about this lawsuit Paul describes above, where he says punitive damages were awarded. But I will respect his desire for privacy and shrug off the curiosity. We're all anonymous here.
PaulJ6
(New York)

Posts:319


09/12/2019 5:18 AM  
Posted By AugustinD on 09/11/2019 8:24 PM
But I will respect his desire for privacy and shrug off the curiosity. We're all anonymous here.




Thanks. I've posted too much before, and had a person in real life recognize the item and it ended a friendship, so I'm pretty careful about disclosing too much online. Burned once and learned my lesson.
NpS
(Pennsylvania)

Posts:3758


09/12/2019 6:38 AM  
Thanks Augustin.

I did model my composite case after Tucciarone. The bamboo thing was irresistible. And it did come from Paul's state. So it applied NY law which I thought was appropriate given the question asked.

I was aware of NY's odd naming system for its courts. And I knew that the trial court decision was reversed.

But Paul's original post on his fact-less case seemed to justify the legitimacy of the outcome based on a lack of appeal from the HOA. So in my composite case, I created a set of facts where the BOD decided not to pursue an appeal. My goal was to have a set of facts that we could talk about. And I am still hoping that someone is interested in talking about these facts as I presented them.

Re the appellate reversal in Tucciarone, the court said that the Business Judgment Rule applies if in good faith and in furtherance of a legitimate interest of the association. And re personal liability of the directors, the court said that they are safe because there were no tortious acts outside their responsibility as BOD members.

Now if Paul's BOD acted outside of their roles as BOD members, I can see the possibility of punitive damages. But that distinction between acting as individuals or as BOD members might be significant to the ruling. And without any facts, we're left hanging in the wind.

As we can plainly see, any court decision is fact dependent, and the outcome might have been quite different if the facts were significantly different. And that is why I, like a broken record sometimes, find fault when an OP demands that we accept conclusions without any underlying facts. Words like "bully" and "harassed" are highly subjective. I would prefer to discuss the underlying facts.

I am fine with Paul's desire for anonymity. I am not fine with fact-less discussions. So as I said, let's talk about the facts that I presented instead. It is an interesting topic if we can move past the sideshow.

Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:319


09/12/2019 8:45 AM  
Posted By NpS on 09/12/2019 6:38 AM
So as I said, let's talk about the facts that I presented instead. It is an interesting topic if we can move past the sideshow.




OK...you may wish to start a new thread for your case (or composite of cases). But do as you wish.

KerryL1
(California)

Posts:6632


09/12/2019 2:09 PM  
I have nothing to contribute but want you to know that i'm following this discussion, which is intent. I also also like Augistine's notes about "ego validation" which I see a lot of on the board here in my HOA.
PaulJ6
(New York)

Posts:319


09/12/2019 2:38 PM  
NpS, before getting upset about what other people post online, you might want to try the Serenity Prayer (if prayer is your thing):

A secularized version is:

"Grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference."

What other people post online might be maddening, but railing at them may have no effect, and in the big scheme of things, if you don't like a particular person who posts online, does it really matter? (Obviously if it's a situation such as the 2016 election, that's one thing, but getting angry due to someone you don't like posting things on a HOA message board is simply not worth it, in my view.)
KerryL1
(California)

Posts:6632


09/12/2019 4:32 PM  
Jeez, Paul! (re: NpS "railing.")
PaulJ6
(New York)

Posts:319


09/12/2019 5:31 PM  
Posted By KerryL1 on 09/12/2019 4:32 PM
Jeez, Paul! (re: NpS "railing.")




OK, I'll change my word to "sniping". Either way, whether or not we like each other, we need to just get along.
NpS
(Pennsylvania)

Posts:3758


09/12/2019 11:17 PM  
Paul. I have nothing against you personally. I have gone to great lengths in this and other threads to explain my perspective when bold generalizations are made without any supporting facts. I don't do that to fight with you or anyone else. I do that in an attempt to engage you in a discussion about how you would apply your thinking to a particular set of facts. I want to know what you think, but not as a whitewash that BODs have good habits or bad habits. None are perfect. They make good decisions and bad decisions. But at the core, the BOD is making it's own interpretation of what the relevant facts are.

In this particular case, the words "bully" and "harassed" were used. To me those words do not inform. I've seen many disputes where both sides said that they were being "bullied" and "harassed" by the other. How can that be that both side are in the right? Yet I've seen those feelings expressed by both sides frequently. Everyone chooses his or her own facts. Without facts, it's just a lot of venting IMO.

In my last post, I once again said that I would like to have a discussion based on a set of facts and I didn't want to engage in the sideshow. Yet here I am once again drawn into the sideshow. Why? Because I am still trying to engage in a worthwhile conversation about how people would deal with certain set of issues. That to me is a worthwhile experience -- even when I disagree with another person's point of view.

So far in this thread, there have been a lot of posts, but only a small few like Augustin who opened up the conversation so we could all learn from each other. I am still looking to discuss a set of facts. There is something to be learned by all of us from these differences in perspectives - me included.






Sikubali jukumu. Read all posts at your own risk.
PaulJ6
(New York)

Posts:319


09/13/2019 1:08 AM  
NpS, take a deep breath and try the Serenity Prayer, even the secular version.
CathyA3
(Ohio)

Posts:459


09/13/2019 4:50 AM  
Posted By PaulJ6 on 09/13/2019 1:08 AM
NpS, take a deep breath and try the Serenity Prayer, even the secular version.




Like NpS, I would like to see some hard facts. I agree that so far this discussion has mostly been broad generalizations, plus some loaded language and deflection, which doesn't inform us. Many of us on this site are, or have been, board members, and we participate so that we can continue to learn and make better decisions in the future. But so far I haven't learned anything that I can put to use - just a mental note to check Google at some time in the future to see if there is something more informative about this particular case.

(Most successful board members already employ some version of the serenity prayer or mindfulness - it's part of that thick skin we need to survive the job.)
PaulJ6
(New York)

Posts:319


09/13/2019 5:16 AM  
CathyA3, thanks. Your posts are fine.

The point I'd take away from my posts in this thread is that if a HOA takes an aggressive stance on something when it has a run-in with an owner, if the HOA doesn't have a strong legal position but the owner does or if the owner otherwise has handy tools for battle (such as a law degree), then the HOA can face a stiffer fight than it would normally expect to have with a typical owner, and that can end up being costly for the HOA. Thus the HOA shouldn't fight with owners (particularly ones with ample resources for battle) unless it has a strong legal position. That's it. The specific facts of a situation can vary, but the point is the same.

NpS can snipe at me all he wants, but to what end? I'm not going to change.
CathyA3
(Ohio)

Posts:459


09/13/2019 8:55 AM  
Posted By PaulJ6 on 09/13/2019 5:16 AM
CathyA3, thanks. Your posts are fine.

The point I'd take away from my posts in this thread is that if a HOA takes an aggressive stance on something when it has a run-in with an owner, if the HOA doesn't have a strong legal position but the owner does or if the owner otherwise has handy tools for battle (such as a law degree), then the HOA can face a stiffer fight than it would normally expect to have with a typical owner, and that can end up being costly for the HOA. Thus the HOA shouldn't fight with owners (particularly ones with ample resources for battle) unless it has a strong legal position. That's it. The specific facts of a situation can vary, but the point is the same.

NpS can snipe at me all he wants, but to what end? I'm not going to change.




Actually, I agree with you regarding the strong legal position. When I was on the board, we always checked with our attorney before pursuing a an issue that could result in legal action. That isn't being afraid of lawsuits, that's prudent management.

Unfortunately I also believe that available resources can determine the outcome of a dispute regardless of the merit of each position. Some years back I convinced the other board members not to pursue a particular course of action, even though we all felt we were in the right, simply because our opponent (not an HOA member) was well heeled and well connected enough to tie up the association in court until we were bankrupt, while we could not do the same to him. I get as annoyed as everyone else about situations like this, but I'm always mindful of the Golden Rule ("he who has the gold makes the rules").

One reason I'm curious about the case we were originally discussing was that I thought I'd detected some hints of the Golden Rule at play, and I wanted to know if I was correct. In addition to wanting to be better informed about HOA stuff in general, of course...
PaulJ6
(New York)

Posts:319


09/13/2019 9:39 AM  
Thanks. I understand that the HOA in the case I mentioned had insurance that covered everything. And the owner was adamant. So both had ample resources to fight.
MarkW18
(Florida)

Posts:121


09/13/2019 1:00 PM  
There was a case stemming from the 2008 presidential race where a homeowner put up an Obama for president sign which was "four" inches taller than "allowed". The homeowners were fined and they fought back. I am guessing, based on where the HOA was located, that it had nothing to do with the size but solely on the person's name on the sign.

The lawsuit was driven by a rogue HOA president. Why didn't other Board members step in. Why did the law firm representing the HOA give better advise, or was it just to collect a paycheck. While some law firms are driven by justice, sadly, most are driven by MONEY.

Bottomline, if the owners are not smart enough to see where a Board might take them, then I have no pity for them at all. Remember, their dues went from $650 to $$3500, so it was wasn't like they were in the dark.
JohnC46
(South Carolina)

Posts:8730


09/13/2019 1:38 PM  
The couple that fought it were both lawyers. Nowadays they say they were sorry they did it.
MarkW18
(Florida)

Posts:121


09/13/2019 1:52 PM  
So do you agree that what the HOA did was right?
MarkW18
(Florida)

Posts:121


09/14/2019 12:33 PM  
I am personally involved in a case in which it involves HOA's I am being sued (wrongly) by a HOA attorney who also owns a MC. I am being sued as an individual and as a company. I can represent myself, but not my company. I have to hire an attorney and when I inquired was told it was going to initially cost $20K. The case has dragged on for two years now because of the plaintiff.

I am due in court Monday for a Mandatory Settlement Conference. We am dealing with a judge who is 80 years old and senile. The plaintiff wants $60K to settle because he knows he would lose in court. The trial date had been set and has been postponed two times and the plaintiff wants another delay because he fired his third attorney and says he has never tried a case in court (another lie) and doesn't feel comfortable.

The plaintiff in his complaint, listed 26 allegations and 14 Causes of Actions, every one can be reputed with proof. I worked for this guy 6 years ago, so he know I have the documents to counter his claims.

I was told by my attorney on Thursday that insurance company will probably settle for $20K, which means I lose. There are two cases consolidated into one. The lead case is a wrongful termination case involving three individuals and not me, the other is a Business Tort case, involving the three in the lead case, myself and the company.

Because I turned it over to my insurance company, I can't countersue. even if I did, I won't get any money as he is broke and without liability and business insurance for the management company. The insurance is only going to look out for their bottom line. During the settlement conference which is mandatory for me to attend, I don't get to speak, it is between the attorneys.

Unfortunately, we hear horror stories about lawsuits between HOA's and owners. How much is really directly by the attorneys and how much input comes from the named party once it has been given to an attorney to prosecute or defend?

AugustinD


Posts:1934


09/14/2019 6:51 PM  
Posted By MarkW18 on 09/14/2019 12:33 PM
I was told by my attorney on Thursday that insurance company will probably settle for $20K, which means I lose. There are two cases consolidated into one. The lead case is a wrongful termination case involving three individuals and not me, the other is a Business Tort case, involving the three in the lead case, myself and the company.

Because I turned it over to my insurance company, I can't countersue. even if I did, I won't get any money as he is broke and without liability and business insurance for the management company. The insurance is only going to look out for their bottom line. During the settlement conference which is mandatory for me to attend, I don't get to speak, it is between the attorneys.

Unfortunately, we hear horror stories about lawsuits between HOA's and owners. How much is really directly by the attorneys and how much input comes from the named party once it has been given to an attorney to prosecute or defend?


MarkW18, are you being sued because of allegations that you did something wrong as either a contractor of the HOA or employee of the HOA?

As for your insurance company settling: It sounds like you (or your company) signed an insurance contract that has a hammer clause. The hammer clause means the insurance company can tell the attorney it is paying, on your behalf, to ignore your desires and settle. The mistake here arguably is signing an insurance contract with a hammer clause. On the other hand, you (or your company) might be paying more for insurance if the insurance contract has no hammer clause.
MarkW18
(Florida)

Posts:121


09/14/2019 7:26 PM  
There is no hammer clause. To date, $60K has been clocked for expenses. If the trial date is delayed another three months, add $20K and the trial of 7 days is $20K. Cut their loses at $15-$20K settlement.
AugustinD


Posts:1934


09/14/2019 8:11 PM  
If there is no hammer clause, then why don't you refuse to settle? Or do you agree that settling does make the most sense (cents)?
PestY


Posts:0


09/15/2019 8:29 AM  
@ PaulJ6


... short answer: because they can ...
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