HOA Class Action Lawsuit > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: HOA Class Action Lawsuit

Prev Next

You are not authorized to post a reply.

Author

Messages

KevinK7
(Florida)

Posts:56

06/25/2008 9:33 PM
Currently my HOA is involved in a lawsuit with a homeowner. The lawsuit was recently started by this homeowner in response to a push to amend and restate our CC&Rs. Is the HOA responsible for letting the neighborhood know about this lawsuit? Our neighborhood is divided into 11 sections and this lawsuit currently only involves one section of our neighborhood. The lawyers had issued a 135 page summons to the HOA and all homeowners who signed the Joinder with the county. I know that people in that area of the neighborhood are familiar with what is going on but the association has made no mention of it. The organizers of this lawsuit have lawn signs to help spread the word but the association has been removing them or harassing the homeowners who have one in their yard. (I have one in my yard and have filmed my neighbor remove the sign every time she passes). Because the lawsuit is a class action lawsuit and can potentially affect all the homeowners (in addition to the 99 already served), should the HOA address this issue?

MicheleD
(Kentucky)

Posts:1445

06/25/2008 10:02 PM
Do your CC&Rs allow you to put signs in your yard other than ones announcing the sale of the lot? If not, then even with the lawsuit, why are you posting signs in violation of the CC&R? If it doesn't address them, not sure what the point of a yard sign about it is anyway. I have no idea, however, if your governing documents require the board to keep all the members apprised of all lawsuits. Ours does not. We do, however, keep our insurance company in the loop.

MicheleD
(Kentucky)

Posts:1445

06/25/2008 10:02 PM
Do your CC&Rs allow you to put signs in your yard other than ones announcing the sale of the lot? If not, then even with the lawsuit, why are you posting signs in violation of the CC&R? If it doesn't address them, not sure what the point of a yard sign about it is anyway. I have no idea, however, if your governing documents require the board to keep all the members apprised of all lawsuits. Ours does not. We do, however, keep our insurance company in the loop.

KevinK7
(Florida)

Posts:56

06/25/2008 10:30 PM
The old CC&Rs do not limit the type of sign that can be placed. The ones trying to be adopted state that a for sale sign can be placed in the yard. What is tricky is that we are 11 sections governed by 1 board (each section can have varying rules and if decided by those section's inhabitants, a separate board). The purpose of the lawsuit signs is to make everyone in the neighborhood aware. Those who signed the Joinders are being sued as well as the HOA. Those homeowners will face a possible 1000$ fine and those in other sections of the neighborhood may also face similar costs. I have attended meetings but whenever the board was questioned about the revisions of the CC&Rs, they woould not allow those asking the questions to speak. My brothers and I (we are the homeowners) have called the president asking for information but they refused to assist us and they even instructed their lawyer not to answer any of our questions so unfortunately legal council had to be acquired. Many of the people I have spoken to are unaware of any lawsuit and when they read what the HOA had them sign, and the possibility of a them being sued as well, there was a lot of concern. People were not aware of many of the changes made. I personally support the lawsuit. After communicating with both the board and any opposing opinions, referencing Florida statutes, communicating with other neighborhoods, and talking with a HOA lawyer, I have become familiar with the entire picture. My concern is that the entire neighborhood may not be aware. Meeting turnout is maybe 30 people total out of close to 1000 homes. The only way I became aware of the situation is that the association cent a certified letter stating we owed them a mandatory assessment or face fines (The assessment is one point of the lawsuit).

GlenL
(Ohio)

Posts:1223

06/26/2008 12:50 AM
Kevin has posted here before. I believe he and his brother inherited the property from his mother in what is apparently a voluntary HOA. The covenants are being rewritten in an effort to force people into a mandatory HOA. If I've got any of this wrong Kevin please correct me. http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/46174/Default.aspx If you can prove you neighbor is taking the signs i.e. pictures or video of her doing it; call the police and have her cited for theft.

DJ1
(Ontario)

Posts:423

06/26/2008 5:25 AM
Have her charged with theft and trespassing or anything else you can throw at her. Sounds like the only one breaking any rules is the neighbour!

BradP
(Kansas)

Posts:1742

06/26/2008 6:32 AM
I agree with the two gentlemen on here, if there is no rule against placing signs I would continue to do so, only I would add one that says "No Trespassing, Private Property" just so they are aware that your yard isn't their play area. I would turn over the tape and asked that your sign is returned and she is cited by police. I do think the HOA should inform the homeowners about what is going on, especially since it could have an impact on everyone or will eventually. That is a tough road to go down, but if the HOA just sticks to the facts and provides just a brief of the case without names then I think it is fine.

KevinK7
(Florida)

Posts:56

06/26/2008 9:31 AM
Actually I did have video surveillance set up and i did catch her pulling out the sign. We do get along with her and we will talk with her before anything more official is done. Our current plan is to leave the sign, continue to keep an eye on it, and see where things lead. Other homes in the neighborhood with these signs have had problems to (removal, egging). I did e-mail the HOA board members to ask if this issue will be addressed at our next HOA meeting and if they had any comments on what was being done. Because of the nature of the lawsuit, the only thing I am worried about is that the HOA may try to harass us because we placed a sign in our yard. We have placed down sod, repaired our fence, and replaced damaged siding but even with our maintenance, they seem a bit irrational right now. I would like to find out more of what is going on and I don't plan on getting all my information from the people who sue the association only because their feelings may be as strong as those on the board and information may be skewed.

KirkW1
(Texas)

Posts:685

06/26/2008 10:21 AM
Kevin, A sure fire way to cause most people to become irrational is to file a law suit against them. Many people are not capable of separating themselves personally from the matter of the suit. They see this as an attack on them personally. As for the board keeping it quiet, I don't know your rules. I know that I would be upset with any board that tried to keep any quiet the existence of litigation. I would vote against MicheleD out of principle. I don't believe in hiding what is going on. I think it breeds distrust for obvious reasons. What else are they hiding? That being said, I am sure the board wants to keep the thing quiet because the existence of the lawsuit could reduce people's enthusiasm in agreeing to the changes they seek. Of course from the sound of it, perhaps it should curb people's enthusiasm. I would feel that the suit should be settled before going too much further as if you are successful, then their charging forward will only make a judge more likely to "lower the boom" on the defendants.

JohnK3
(Pennsylvania)

Posts:243

06/26/2008 10:39 AM
135 pages? That's a hefty document for the apparent issue. Typically, attorneys repping Plaintiffs in a Class Action do so on their own dime, with hopes of a payoff on the back end. I don't see where the payoff is in this conflict. What am I missing?

KevinK7
(Florida)

Posts:56

06/26/2008 8:17 PM
From what I've become aware of, the resident who began the lawsuit is spending their own money to go against the HOA and represent any other homeowners as a class action suit (I think he is a retired lawyer). There has also been consideration of involving the ACLU. The HOA is retaliating by trying to form a class action defense having their lawyers represent the 99 homeowners also being sued. The HOA is also trying to get the plaintiffs lawyer off the case stating a conflict of interest because he represented another resident of our neighborhood against the HOA in the past. It sounds very messy and I believe can be fatal to the HOA. The legal fees alone must be excruciating. Page one of the lawsuit states: This is an action of slander of title, for declaratory relief, and for injunctive relief within the jurisdiction of this Court, which relates to an improper attempt to impose affirmative covenants, including an obligation to pay assessments or other charges, upon owners within a residential subdivision with neither their agreement nor consent. I have yet to read the entire document, as it is quite lengthy to read as a PDF. From what I have read, it is quite interesting and if the board is trying to keep it quiet, I can see why. While wordy, it can be intimidating and the arguments made within are very detailed, drawing data from over 30 years of HOA existence. Its sad that it has come to this and it literally has turned neighbor against neighbor. I am unsure if this is a case of a renegade board hijacking the HOA. Most participants and board members are from a couple of sections and being rather large with a diverse demographic, it surely is difficult to satisfy everyone's needs. I personally believe that the board did not expect this kind of resistance, and being caught off guard has stalled their communication with the rest of the neighborhood. Its been two days and I have yet to have a response from the board as to whether they will address this issue in their next meeting or newsletter.

KirkW1
(Texas)

Posts:685

06/26/2008 8:26 PM
...The HOA is also trying to get the plaintiffs lawyer off the case stating a conflict of interest because he represented another resident of our neighborhood against the HOA in the past. ... Wow, someone doesn't understand the concept of a conflict of interest. The lawyer would have a conflict of interest if he stood to lose out in the event his client won. But having represented another owner against the HOA would not create a conflict of interest at all. Unfortunately, there are some lawyers who try to abuse the system by making many motions in hopes that one will derail the opposition. In some cases this backfires as a judge can hold them in contempt and reduce their ability to make motions. (Which could damage their ability to win.) Quite frankly, when I see things like this I think perhaps it is time to allow a judge to fine a party early for making frivolous motions.

KevinK7
(Florida)

Posts:56

06/26/2008 8:45 PM
I believe the HOA made thee motions. One was conflict of interest. Another was to make a class defense allowing the HOA's lawyer to defend all the defendants (even though several homeowners have already obtained their own legal council). I cannot remember the third. From my understanding, the lawyer representing our HOA specializes in collections, not HOAs. When we questioned their intent and what laws they were basing their decisions off of, they responded with a collections case from county court and avoided all questions we had asked. One of the main themes is that the voluntary association is accessing mandatory fees regardless of membership. They also require membership to be mandatory for new owners, although stating that it is still a voluntary association (because people like me who weren't members can have the choice to remain non-members). While the HOA says membership is voluntary, in the lawsuit they state that it is mandatory and they have the "inherent power over anyone who owns a lot". Other main themes are changing restrictive covenants to affirmative covenants with only a simple majority, and requiring fees for the upkeep of "common areas", when all roads are maintained by county and the HOA owns no real property.

MaryN
(Virginia)

Posts:116

06/27/2008 4:13 AM
Wow! this sounds like the law suit with our HOA..which has been acting like a mandatory association, but legally is not..they tried to become one by changing the covenants. Long story, lots of money later, court date coming up in late Sept. The "civic association" listed almost all of the property owners as defendants using their lawyer. All of the property owners were served with the complaint. The BOD has not informed any of those defendants about the case. They don't even know about the court date. The BOD has stated that it's a silly lawsuit and the property owners seem to believe it..at the annual meeting it was mentioned that the BOD has hired 2 attorneys and they hoped the case would be settled "quickly, cheaply and amicably"..unfortunately..it has turned neighbor against neighbor. MaryN

MaryA1
(Arizona)

Posts:1562

06/27/2008 8:28 AM
Mary, I've been reading all the messages you've posted about your civic assn wanting to turn into a mandatory HOA. I find it all so very interesting. I'm especially looking forward to hearing on how the courts rule on the membership issue. Are all property owners required to vote in favor or just a majority? Please be sure to keep us updated! Thx.

KevinK7
(Florida)

Posts:56

06/27/2008 9:55 AM
I am interested in knowing what happens as well... since the case for my neighborhood should be going to court soon, it would be interesting to have comparative data. I just received a response from the president and he had told me that the board did not make plan to mention the lawsuit on the website or any newsletter and have not quite determined if they would address it at our next scheduled meeting. He had stated that they will make their decision following advice from their lawyer. I would be concerned if come the next association meeting they do not make reference of the lawsuit. I would then assume that they are trying to keep things quiet. I don't think they will be able to though... the lawsuit's website has already had over 1500 visitors so I assume the signs are working.

MaryN
(Virginia)

Posts:116

06/27/2008 10:06 AM
From what I understand..one thing they are allowed to talk about is how the lawsuit is being paid for..insurance?..taking the money out of a special fund?..special assessment? Is there a Florida state law that requires the loosing party to pay all the legal fees? MaryN

MaryN
(Virginia)

Posts:116

06/27/2008 10:06 AM
From what I understand..one thing they are allowed to talk about is how the lawsuit is being paid for..insurance?..taking the money out of a special fund?..special assessment? Is there a Florida state law that requires the loosing party to pay all the legal fees? MaryN

KevinK7
(Florida)

Posts:56

06/27/2008 10:28 AM
I don't believe there is a Florida law that requires the loosing party to pay legal fees, although from what I have been told by others, it is common practice to recoup all money spent. That is what the HOA's lawyer told us and that is what I've read from other lawsuits around my neighborhood.

GloriaM
(North Carolina)

Posts:768

06/27/2008 3:03 PM
Sue, file a lawsuit, sue your HOA, sue your board...sounds like the only one winning here is the attorney's. What happened to communication, being reasonable, finding solutions? Kind words can be short and easy to speak, but their echoes are truly endless. A lawsuit should be the absolute last resort, try mediation, arbitration or just invite them to a good sit down and try to resolve the issues.

Dr. Gloria J. Martinez, CFO Official HOATalk.com Sponsor Author of "A Guide to Community Living" Faith Management Services, LLC (North Carolina) (704) 799-3791 www.FaithManagementServices.com *See legal notice below (end of page) or go to www.hoatalk.com/legal

KirkW1
(Texas)

Posts:685

06/27/2008 5:42 PM
Sue, file a lawsuit, sue your HOA, sue your board...sounds like the only one winning here is the attorney's. While in most cases I would agree, I disagree in these cases. I don't see how someone can possibly encumber property initially without the consent of the property owner. If that is so, then there is never a point in owning property. Next thing you know, an HOA will attempt to exercise the power of eminent domain. In both Mary and Kevin's cases it sure sounds like someone has decided they can encumber another person's property without consent. I realize that many CC&Rs allow for modification with a super majority which then imposes on others. But if a property owner is to have rights, you can not possibly put a CC&R in place without the initial consent. And there should be no possible way for an HOA to become mandatory without the consent of every landowner. (Though if some want to subject to the HOA without others it could be mandatory for them while not being mandatory for those who don't want to give up their rights.)

KevinK7
(Florida)

Posts:56

06/27/2008 8:33 PM
We had actually tried to communicate with the board before everything had escalated. From looking at past newsletters from our HOA, we actually required a supermajority of 98% to make changes but somewhere down the line that was changed. From reading about my neighborhood, basically each section can have its own board. A couple of the sections actually had become separate HOAs within our neighborhood! A few years back, one of the sections realized that the other sections did not have an elected board so they legally changed their name and had assumed board status for the other sections (I am not sure how that was done). The people who live in that section may very well want to be mandatory but when they wanted to change the other sections is when problems arose. The lawsuit arose when they imposed the new CC&Rs on the adjoining section, and apparently some home owners were not pleased. My brothers and I just wanted to be left alone. We supported the lawsuit after all methods of communication failed. We did pay the mandatory assessment but under protest, as advised by our lawyer, to avoid the possibility of fines and fees. I cannot stress enough that our goal was never to enter into a legal battle with the BOD. We obtained a lawyer only to decipher the recent changes and understand our property rights and any infringements that may have occurred. Apparently we were not alone in our concerns.

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > HOA Class Action Lawsuit

ActiveForums 3.6