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LynetteL
(Georgia)

Posts:8

08/03/2008 6:19 AM
Hi, I am new here and have a question. Sorry for the length. We are a small subdivision (53 homes). The board was turned over to us in the beginning of 2005. Just prior, the builder finally got around to sending out violations notices. When the board was elected, one of the people on the board had a small camper in her driveway. She was heard (by me) asking the builder (who retained architectural control) about putting up a removable screen of lattice to screen the camper from street view(per the covenants), He told her that sounded fine. Fast forward 9 months, we lost a board member and I came on as VP.....found out that we had never been incorporated, etc. I worked very hard to get the insurance, incorp. etc together. The builder did help me get bylaws recorded etc. He then tells me that he has an objection to the screening that was put up in front of the camper. I talk to the Pres. who says she has no problem. I talk to the board member with the camper and she tells me that the builder approved it. Back to the builder....he says he never did and has nothing in writing about it and he NEVER approves anything not in writing. (so not true....he decided not to enforce the part of the covenants that deals with boats trailers campers being parked on concrete...did not want to enforce because everyone has 1.5 acres or better and he has not problem with them parking it in the wooded areas as long as it is not seen from street)...there are other slight violations he approved.... The Board does not address the issue of the camper screen. The board has changed a few members since then and each Board addressed this issue. They felt that since the Architectural Committee (the builder who refuses to turn it over) did not do its job in addressing this issue, it is too late to address now. We have been very consistent in enforcing the boat/trailer/camper issue since then. Recently, vocal people called the builder because it was not "fair" that the camper is not properly screened. We contacted a lawyer about another matter, and discussed this issue with him....he stated that 3 1/2 years later, we should let the matter go and focus on the fact that we have been consistent since. The builder was told this. Now, he approached me yet again......said that he was tired of the Board making everyone else conform to the covenants and not this one person (she is no longer on the Board)... He tells me that he has control over the Architectural Committee because he owns 3 lots in here.....(the rest are owned by members of the homeowners association)......He got so angry when I told him what the lawyer had advised us that he actually threatened to "take back" the Board so he can charge her with a violation........ Now, the Board's position is that this violation was let go on so long before it was ever even addressed....that the homeowner had every right to assume she was in compliance.....to go after her now will create a lawsuit that we might not win......Some on the current board don't like the lattice work (as it does not screen very well) but the homeowner has worked to keep the screening positioned to be as screened as possible. Those who don't like have acknowledged that we took no action back when it first went up...and that the Board had no idea the builder did not approve it for at least 8 or 9 months later...and still took no action. The homeowner insists the builder approved it verbally .. the builder insists he did not..... What do you do in this situation???? The builder says the lawyer is wrong and we should let a judge decide....like we all just want to spend money on a lawsuit....

MaryA1
(Arizona)

Posts:2157

08/03/2008 6:44 AM
Lynette, If the assn was turned over to the homeowners 3 years ago,how can the builder maintain control of the A/C? IMO, once turnover is completed, the builder is out of the picture. What do your docs say about this? The fact that he owns 3 lots in the s/d only means he gets 3 votes in an election. It seems to me that because he does own prop in the s/d he wants to maintain control over A/C issues and has hoodwinked the board into believing he has the power because of this.

LynetteL
(Georgia)

Posts:8

08/03/2008 7:38 AM
The builders turned control of the Board over but maintained control of the Architectural Committee......It is in the covenants that the A/C control is in the hands of the person who owns the most lots..and they are listed as the A/c in the covenants. I personally think that this should be the homeowners (ie the association) but others feel he is correct.....

LynetteL
(Georgia)

Posts:8

08/03/2008 7:38 AM
The builders turned control of the Board over but maintained control of the Architectural Committee......It is in the covenants that the A/C control is in the hands of the person who owns the most lots..and they are listed as the A/c in the covenants. I personally think that this should be the homeowners (ie the association) but others feel he is correct.....

LynetteL
(Georgia)

Posts:8

08/03/2008 7:40 AM
Also, he has previously stated that his only function is to approve or disapprove things not to follow up on violations or address violations at all......He wants to do what he wants, when he wants...my opinion only....

MaryA1
(Arizona)

Posts:2157

08/03/2008 7:46 AM
Posted By LynetteL on 08/03/2008 7:38 AM The builders turned control of the Board over but maintained control of the Architectural Committee......It is in the covenants that the A/C control is in the hands of the person who owns the most lots..and they are listed as the A/c in the covenants. I personally think that this should be the homeowners (ie the association) but others feel he is correct..... Lynette, That is very interesting. Would it be too much trouble to post that clause in the CCRs verbatim? I'm not disputing what you say; just would like to see the actual wording. I've never heard of this b/4. But, everytime I say that. . .well, you know what happens. LOL BTW, from what you've posted, I would have to agree with the builder on the interpretation. The homeowners, collectively, own the most lots, but the builder, individually, owns the most lots.

LynetteL
(Georgia)

Posts:8

08/03/2008 8:06 AM
Sure, here it is verbatim The architectural control committee is composed of ____(both builders listed by name..although their corporation has been dissolved...one builder has rescinded his imvolvement in the committee...leaving his son as the sole architectural committee member...he refused to let a board member be on the committee with him)..A majority of the committee may designate a representative of the committee to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee, nor their designated representative, shall be entitled to any compensation for services performed pursuant to this covenant. At any time, the then record owner of a majority of the lots in this entire subdivision shall have power thru a duly recorded wirtten instrument to change the membership of the committee or to withdraw from the committee or restore it to any of its powers or duties. That is the entire clause.....does this mean he CAN toss off the board and take it back into his hands?

MaryA1
(Arizona)

Posts:2157

08/03/2008 8:22 AM
Posted By LynetteL on 08/03/2008 8:06 AM Sure, here it is verbatim The architectural control committee is composed of ____(both builders listed by name..although their corporation has been dissolved...one builder has rescinded his imvolvement in the committee...leaving his son as the sole architectural committee member...he refused to let a board member be on the committee with him)..A majority of the committee may designate a representative of the committee to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee, nor their designated representative, shall be entitled to any compensation for services performed pursuant to this covenant. At any time, the then record owner of a majority of the lots in this entire subdivision shall have power thru a duly recorded wirtten instrument to change the membership of the committee or to withdraw from the committee or restore it to any of its powers or duties. That is the entire clause.....does this mean he CAN toss off the board and take it back into his hands? Lynette, This is very interesting and, IMO, very devious on the part of the developer. My interpretation is this: 1) it doesn't say the A/C is run by the owner of the majority of the lots; it just happens to turn out that way; however, 2) only the owner of the majority of the lots has the power to change the make-up of the committee Considering this, I would say the only way to get around this is to amend the CCRs and change this provision. You shouldn't have any problem getting the required number of votes since many of the members are not in favor of the builder's rein on them. However, make certain you read the amendment clause very carefully to ensure it doesn't state the clause pertaining to the A/C committee can only be amended by the person owning the majority of the lots.

LynetteL
(Georgia)

Posts:8

08/03/2008 8:25 AM
Yes it does seem very devious way to maintain architectural control..... PS Any suggestions on the original question about the camper screen?

SusanW1
(Michigan)

Posts:2117

08/03/2008 9:56 AM
Lynn- when the association incorportated, it should have looked at ALL of the governing documents and amended/rewritten/recinded/drafted them at that time. Was there anything in the transfer that said you had to accept ALL of the developer's CCRs? How will your HOA amend the CCRs in the future? What procedures are currently in the CCRs for amend them? Anyway . . . You must get out of this stranglehold this guy has on your AC. Get all your residents together and explain this control issue and get that amended ASAP. Re: the "agreement" on the screen. You can't have inconsistencies in the application of the CCRs. If something is NOT in writing, it does not exist (any judge will tell you that) and he had no right to give her special dispensation then or now. If she can't show you an agreement letter, then she has no agreement with the HOA. The Board should draft her a letter, quote the CCR that shows her violation, and set a fine schedule for non-compliance. Let her get a lawyer, if she wants. She has no case. P.S. this guy's actions are threatening the HOA financially and administratively, not to mentions that he is making a fool of the Board and your corporation.

SusanW1
(Michigan)

Posts:2117

08/03/2008 10:00 AM
IMHO - this CCR applies ONLY when he was the developer (of course the developer would control the CCRs) It does not apply after the transfer and when the new corporation was formed and the definition of "member/owner" changed for the corporation. You are going to have to get a real estate lawyer who specializes in this.

LynetteL
(Georgia)

Posts:8

08/03/2008 10:23 AM
I have a feeling that when they turned over the HOA, they did not do so properly. We did have a lawyer help us with the corporation and to have bylaws recorded, etc.....There is no paperwork reference a turnover of the HOA. None of us on the board had ever been on a board before or had any knowledge of the ins and outs of it......Wow....we are in a mess with the developer holding the reins it seems. I guess in his eyes he can just take back over the board if he chooses....

LynetteL
(Georgia)

Posts:8

08/03/2008 10:33 AM
Re: the "agreement" on the screen. You can't have inconsistencies in the application of the CCRs. If something is NOT in writing, it does not exist (any judge will tell you that) and he had no right to give her special dispensation then or now. If she can't show you an agreement letter, then she has no agreement with the HOA. The developer/AC committee originally told her verbally that the lattice screen would be fine....he never followed up when he saw what she put up. He told the board after the screen had been up for 9 months...the board did not agree that it was a problem at the time and did not enforce it..... Now.....he (builder) wants her found in violation almost 4 years later and the screen taken down. The issue of the screen has been discussed with the homeowner, she stated her case, the board agreed that it had been let go so long, that as long as she kept the lattice work screen properly in front of the camper, it would not be addressed. So she feels she is not going to get any further action on this. The builder is irate that it has been let go, refuses to acknowledge that he did not address this promptly as the AC and is demanding the board take action. We are in a quandry here...... The Board does not necessarily like the screen but a lawyer told us not to go after her because it had been let go for so long.....so that is what we did...and she is aware of that.

KirkW1
(Texas)

Posts:1110

08/03/2008 12:35 PM
The developer retaining rights to ACC is not a new one. Our developer had the right to control the ACC as long as he owned a single lot inside the HOA. This being said, they turned over ACC to the rest of the HOA just after the turnover of the association. As for the ability to take back the board, I don't think he would be able to get that done. It shue would open him up for lawsuits if he did so as his inaction in itself could be reason to charge him with a failure of his fiduciary duty. (And that he didn't properly form the corporation as well. (Did he properly file the covenants? They may be invalid.) As for his control, you should look into amending this. A very small block of owners could take this from him anyway (and may want to). They would simply have to form a LLC for the purpose of holding their houses. They could form it in such a way that each still controls their own house. Then with four lots owned, they would be the owner with the most lots. Of course they may or may not be benevolent and thus the reason for changing the mechanism anyway. Down the road a person who bought a second house to rent out could be your ACC otherwise. As for the violation, all exceptions and approvals should be in writing. A written document is the only sure thing that will stand up in court. Otherwise the question is did someone else (preferably with no reason to cover for her) hear the builder tell her the solution she has was fine? If not, then she will ahve to change the solution to come into compliance. But she should protect herself and make sure that whatever solution she comes up with is in writing.

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