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JoseS2
(California)

Posts:26

11/30/2008 4:47 PM
A member asked for ADR and the board forwarded the request to our attorney, the attorney tried to contact the member via email and never heard back from the member. The attorney billed the association, it was about 200.00. We then added it to the member in questions monthly assessment. Do they have to pay this? They have asked what it is for and the management company has not responded to that yet it has been over a month. Is it legal to add to ONE members monthly bill without adding to all? In the statement to the member it does say it is regarding email from the attorney. Jose

MicheleD
(Kentucky)

Posts:1866

11/30/2008 5:51 PM
What does ADR mean?

SusanW1
(Michigan)

Posts:2316

11/30/2008 6:12 PM
The board was wrong in not notifying the resident that there would be a charge for the ADR - (whatever that is) The board will have to eat this cost, since it acted on its own - IMHO (and that means In My Humble Opinion)

DwightT
(Idaho)

Posts:483

11/30/2008 6:34 PM
I'm assuming that ADR is Alternative Dispute Resolution. It can be a less expensive method to solve problems without having to go to court. If the homeowner requested ADR and the attorney attempted to set it up but got no cooperation from the homeowner, then it is entirely reasonable to charge the homeowner for the attorney's time. To answer Jose's question, yes the HOA can (and should) add the cost to one homeowner's bill without adding it to the other's. This is typically known as a Limited Assessment and is meant to recover the HOA's costs for enforcement.

SusanW1
(Michigan)

Posts:2316

11/30/2008 7:47 PM
Still, the homeowner should have been advised that this request was going to involve a cost.

RobertR1
(South Carolina)

Posts:2523

12/01/2008 12:09 AM
Dwight is wight, The cost is legitimate. Ideally the cost should be referred to in covenants and specified. However the request for ADR is a request for a service, just as the request to have a mechanic trouble shoot you car, you know it is going to cost you and you might ask ahead of time, but the mechanic is going to bill you because you requested to have some work done and time spent.

DwightT
(Idaho)

Posts:483

12/01/2008 7:04 AM
Posted By RobertR1 on 12/01/2008 12:09 AM Dwight is wight, If my arms were long enough I would slap you.

JohnK3
(Pennsylvania)

Posts:568

12/01/2008 9:06 AM
Posted By RobertR1 on 12/01/2008 12:09 AM Dwight is wight, The cost is legitimate. Ideally the cost should be referred to in covenants and specified. However the request for ADR is a request for a service, just as the request to have a mechanic trouble shoot you car, you know it is going to cost you and you might ask ahead of time, but the mechanic is going to bill you because you requested to have some work done and time spent. I'll disagree. Member asked for ADR. Doesn't appear Member got ADR. Board could have handled the request, or at least started the process w/o attorney. Attorney sends Member an email(?!?) and charges $200. HOA should pay for this goofiness, not Member.

DonnaS
(Tennessee)

Posts:2951

12/01/2008 1:29 PM
Jose, I am not clear on why the Board forwarded a members ADR request to the Association attorney. What was the issue here? Board against homeowner or what? If the H.O was seeking a judgement against the Board, then the Board becomes the defendant and they would be paying the attorney fee. I'd say from that , that it is the Boards responsiblity for the cost. P.S. $200.00 is a stiff price to pay for an e-mail.

MaryA1
(Arizona)

Posts:2504

12/01/2008 1:58 PM
Jose, I have to agree with John on this one. First of all a fee of $200 for an email communication is rather steep. Secondly, I would say the attorney should have sent the communication by snail mail. ADR usually comes with a cost; therefore the member should have been expecting to pay something. However, that fee should not include the assn's attorney's fee for communicating with the member.

RobertR1
(South Carolina)

Posts:2523

12/01/2008 1:59 PM
Donna and John, Original post: ********************** A member asked for ADR and the board forwarded the request to our attorney, the attorney tried to contact the member via email and never heard back from the member. The attorney billed the association, it was about 200.00. We then added it to the member in questions monthly assessment. Do they have to pay this? They have asked what it is for and the management company has not responded to that yet it has been over a month. Is it legal to add to ONE members monthly bill without adding to all? In the statement to the member it does say it is regarding email from the attorney. Jose **************************************** I guess it all depends on what you want to assume. I assume the member knew enough about the procedure that he felt his requiest was to go to Board. I assume the Board know enought about the procedure that they forwarded it to the attorney. I assume the attorney knew enough to make the attempt to contact the owner, and if he didn't respond he could bill hime for the service. Not knowing the procedure for this association that describes the steps in the process, I have to assume they were followed. If you don't believe any of this then your assumptions are just as wrong as mine, unless you are privy to the directives concerning this matter. I can't believe a concerned owner would formally request ADR from the Board and would choice to ignore the response for his request, surely he must have an inkling that the contact initiated by the Boards lawyer had something to do with his request. So, it all means you don't KNOW and I don't know, but I can draw a logical conclusion from the information given. I also know this would leave the door open for further consideration if more facts become known.

MicheleD
(Kentucky)

Posts:1866

12/01/2008 2:28 PM
Yes. Logical conclusions from the information given. . . I tend to agree with Dwight, then, if this is what happened: " If the homeowner requested ADR and the attorney attempted to set it up but got no cooperation from the homeowner, then it is entirely reasonable to charge the homeowner for the attorney's time. "

JohnK3
(Pennsylvania)

Posts:568

12/02/2008 9:38 AM
Lotta 'summin' goin' on? Perhaps. But try this: Member contacts Board saying she thinks a brick wall built by the HOA is not only encroaching on her private property but also is structurally unsound, not to mention assembled with bricks of a color and size not fitting with the HOA enabling language. HOA hires a surveyor, an engineer, a stone expert and a "colorist" to investigate. Turns out the wall passes all the required tests; she thought wrong. HOA bills Member $5,963.26 for the investigation. Plus $200 for an attorney to send her an email with the results. She must have assumed that was coming due to her request, yes?

SusanW1
(Michigan)

Posts:2316

12/02/2008 9:42 AM
"HOA hires a surveyor, an engineer, a stone expert and a "colorist" to investigate. Turns out the wall passes all the required tests; she thought wrong." The board did all that without touching base with the homeowner and letting him/her know what the options were and the cost? To paraphrase . . . What we have here, folks, is a lack of communication . . .

MaryA1
(Arizona)

Posts:2504

12/02/2008 9:43 AM
John, Frankly I don't think the majority of HOA members would think so. IMO, the HOA should always inform the member(s) when they will be charged attorney fees or any other type fees. In fact, I wonder if a member would have cause for a lawsuit if they were charged fees w/o being notified first especially if the gov. docs. make no mention of the type fees being charged.

MicheleD
(Kentucky)

Posts:1866

12/02/2008 10:26 AM
Okay, now I'm taking an entirely different position, given the additional facts presented. How would our board have handled it? "Member contacts Board saying she thinks a brick wall built by the HOA is not only encroaching on her private property but also is structurally unsound, not to mention assembled with bricks of a color and size not fitting with the HOA enabling language. " Since the member contacted the board saying she "thinks" all that, then our board would have thanked her for her input and asked to her get back with us when she has "proof" of all those allegations. Our board would not have initiated an expensive "exploration" like that without more concrete information. For example, were she to have presented us with her own site survey (which are not that expensive, after all, if SHE were to plan on erecting a fence or a "wall," she would have had to have done that anyway) then we would have engaged an investigation. Why? Because I would IMAGINE that prior to erecting the wall ourselves we would have obtained a site survey anyway, which would have clearly showed that the wall were "legal" in placement. So at that point, the only points of contention, or allegations, are that the wall was "structurally unsound" and consisting of brick color not appropriate. I would still put the onus back on the person making the allegations. She would need to come to us, through legal action or some other proof-obtaining process. In other words, the ball would always have been in her court to initiate investigative action or not. Not ours. She's accusing us. Only if it were to be elevated to a lawsuit would we then expend funds to defend our placement, structure and coloration. Then, if the investigation proved our position, we could have requested reimbursement of all fees and a judge would then make that decision. Anyway, my 2 cents. Based on the information in the post.

JohnK3
(Pennsylvania)

Posts:568

12/02/2008 10:43 AM
Michele (or others), Same Brick Wall hypothetical, but this time, Member is not addressing her property, but that of her next door neighbor - essentially reporting possible Arch violations within the HOA. What then, if any, variation in your response? But again, my main point is that an HOA "ought" to both handle what it can internally and advise Membership beforehand of the potential costs of making requests

MicheleD
(Kentucky)

Posts:1866

12/02/2008 11:01 AM
Posted By JohnK3 on 12/02/2008 10:43 AM Michele (or others), Same Brick Wall hypothetical, but this time, Member is not addressing her property, but that of her next door neighbor - essentially reporting possible Arch violations within the HOA. What then, if any, variation in your response? But again, my main point is that an HOA "ought" to both handle what it can internally and advise Membership beforehand of the potential costs of making requests I would see no variation in my response. If someone makes an allegation, that's all they have done. If they have no more proof than an assertion of what they THINK happened, then I fail to see how we are under any obligation to "prove" anything. Until we are approached with a more concrete set of facts (like the neighbor had a survey done and it shows an encroachment), then we would not do anything, other than respond that we believe that our wall was properly constructed within the appropriate property lines and let them take it from there. But to go out and embark on an expensive investigation on no more than a presumption with no concrete basis is a little irresponsible. In fact, we had a similar situation, in reverse, that evolved in our community. A resident erected a privacy fence that encroached 8 feet onto the common area behind her lot. When we first discovered it, we FELT that it was encroaching, but without any survey or site plans, we could only just speculate. There were no other fences in her immediate area, so on SIGHT review, it was hard to tell where, exactly, the property lines ended. It was only conjecture. It just LOOKED to us like it was extending farther into our common area than it should be. We would have been stupid to initiate a lawsuit on a mere "guess" on our part! So we contracted for a lot survey of the common area. It cost $300.00. But, after the survey was complete, we had PROOF that the fence was encroaching 8 feet into the common area property. We did not bill HER for that survey, since WE were the ones who were trying to make sure there was an encroachment or not. THEN we went to the resident WITH THE RESULTS OF THE SURVEY, and requested that she remove the encroachment. She was supposed to have obtained a lot survey when she constructed her fence. She indicated on her Architectural Approval Form that she had her fence builder perform a survey prior to building the fence. We don't request to see the survey, but we tell the residents that it would be in their best interests if they obtain one. We DO have a disclaimer on the Architectural Approval form that they are responsible for all surveys of their lots and/or city-required permits, and that failure to obtain them could result in costly revisions. At any rate, she ultimately had to remove the entire fence (yes, it DID get to a lawsuit filing, but she ended up removing the fence before the court date, but she still had to pay the attorney's fees and filing fees.) We still did not bill her for the site survey. After all, if she had NOT encroached, and the survey showed that, we would not have had to move forward with anything.

JohnK3
(Pennsylvania)

Posts:568

12/02/2008 11:19 AM
Michele, I'm not trying to pick a fight. But as I read your response, if an HOA (Board) thinks a Member is in violation, that should be jumped on, while if a Member thinks the HOA is in violation, tough darts?

MicheleD
(Kentucky)

Posts:1866

12/02/2008 11:38 AM
No you are completely misreading me. It is up to whoever SUSPECTS that an encroachment exists to FIRST GET PROOF, THEN decide what to do, how to move forward. In our case WE SUSPECTED that there was an encroachment by someone else. But we didn't then go knocking on the homeowner's door and tell her to prove she WAS NOT on our (HOA) property. We got our proof FIRST, THEN approached her. If we had just suspected it, and had gone and told her we think she's encroaching on HOA property, then she could have said, "Really? How do you KNOW that? Do you have PROOF?" I can't imagine that she would then go out and survey her OWN property just on the SUSPICION of ours. It is just that in our case, the person (entity) that first had the suspicion was the HOA. Not a Homeowner. But if WE had built a fence (which we did, by the way, around our lake), and if one of the homeowners came to us and told us that they felt we had encroached onto their property, we would simply have requested that they would need to bring us strong proof, something other than their "eyeballing" it . . . We would NOT have gone to get a survey simply on the allegation of a resident who is just pretty much going on "eyeball" "proof." (disregard for a moment that we would have already HAD a survey done PRIOR to building the fence to begin with and would have been able to produce a copy of it at the first allegation of encroachment.) If the resident then gets a surveyor for his own property, and discovers that we are encroaching, then it's entirely up to the homeowner if he wants to try to bill us for his survey or not. That's an entirely different scenario. My guess is he WOULD try to bill us, and my next guess then would be that we would probably move to approve the expenditure, since it was our failure to properly survey in the first place that resulted in the encroachment. On the other hand, if the homeowner's survey showed we were NOT encroaching, then we are under NO obligation to pay for his survey. It all depends on WHO is doing making the allegations. Whoever makes the allegations is responsible for proving that they are true. If someone comes to me with an allegation, I then am under NO obligation to embark on a costly investigation to PROVE the allegations are incorrect, unless and until the accusations make it to court. And still I would be inclined to let the one who is accusing provide the proof that some failure or damage on my part actually existed. Does that make it any clearer?

MicheleD
(Kentucky)

Posts:1866

12/02/2008 11:43 AM
By the way, we would have an obligation to pursue determining if someone has encroached onto the common area, if we suspected it. We would not be in a position to allow any of the common area to become the "property" of another homeowner simply by that homeowner taking possession of it, especially something like 720 square feet of common area! Obviously we thought the fence was pretty clearly encroaching into the common area. We could not ignore it. But before we could move to do ANYTHING we would first need to know, for sure, whether a real encroachment situation existed. Actually, thinking back, it was our lawn maintenance people who first brought up the fact that the fence may be on the common area. Based on what we had indicated to them was the cutting area, they were having to mow around the fence. One of two things was possible: We had them mowing the back ends of other residents lots OR a fence was now jutting out into the common area. Before we could make any declaration, we needed to have a lot survey done of the common area. Hope that adds to the clarification.

GlenL
(Ohio)

Posts:1468

12/02/2008 12:42 PM
Posted By JoseS2 on 11/30/2008 4:47 PM A member asked for ADR and the board forwarded the request to our attorney, the attorney tried to contact the member via email and never heard back from the member. The attorney billed the association, it was about 200.00. We then added it to the member in questions monthly assessment. Do they have to pay this? They have asked what it is for and the management company has not responded to that yet it has been over a month. Is it legal to add to ONE members monthly bill without adding to all? In the statement to the member it does say it is regarding email from the attorney. Jose Jose, unless the possibility of a fee for not responding was disclosed at the time the member requested the ADR then IMO the fee should come out of general funds paid by everyone, it is simply a cost of doing business. While I'm reasonably sure that the $200 involved more than an email, they cannot arbitrarily pass the costs along unless your CC&R's or state law specifically allows it. The BOD should consider this a learning experience and move on.

JoseS2
(California)

Posts:26

12/02/2008 2:50 PM
I looked into it and the law in CA and our CCR's state each party will pay for their side. So I have found out what is going on. The board has been fighting parking with this member for several years. Long before I was on the board. Now the board says that if these members dont pay then adding it to their bill will force them to pay. Then if they dont pay we as a board will go to the lien process. This is how it has gone on since I have been on the board (about 6 months) and I want NO part of this. We, as the board, need to pay this and not forward this on to the member. This will end in a lawsuit.

MicheleD
(Kentucky)

Posts:1866

12/02/2008 3:10 PM
I think you are correct. And I don't think the lawsuit will end the way the board thinks it will end!

DwightT
(Idaho)

Posts:483

12/02/2008 6:33 PM
So lets say I have a dispute with the Board. Doesn't really matter what the dispute is or who is really right. I inform the Board that instead of going to court, I want ADR, with each side paying their own costs. But when the Board's representative attempts to contact me to set it up, I just ignore him, so the dispute still has not been resolved and the HOA has had to pay the ADR costs with nothing being accomplished. And the HOA is supposed to just eat these costs and the Board should consider it a "learning experience"? Sounds like the homeowner enacted his own "punishment" here by making his neighbors (the HOA) pay.

MicheleD
(Kentucky)

Posts:1866

12/02/2008 7:06 PM
Dwight, I'm thinking if it were just the cost of the ADR process (the $200 for attempting to set it up and the Homeowner declining), then you are probably on target. But somehow I think this is about the roughly $6,100+ for the investigation AND the $200 ADR "cancellation fee" as a whole. I simply do NOT understand why the board would embark on such an expensive investigation simply on a resident saying, "Hey, I THINK you are stepping on my property. . ." I think I'm getting confused. Or there is some of the story missing.

DwightT
(Idaho)

Posts:483

12/02/2008 7:20 PM
Michelle - The $6100 and the stepping on property was something that John came up with in a completely unrelated hypothetical situation. The only thing that we've seen from Jose here is a dispute about parking and a $200 ADR charge. As far as we know, that's all there is to it.

MicheleD
(Kentucky)

Posts:1866

12/02/2008 7:26 PM
Posted By DwightT on 12/02/2008 7:20 PM Michelle - The $6100 and the stepping on property was something that John came up with in a completely unrelated hypothetical situation. The only thing that we've seen from Jose here is a dispute about parking and a $200 ADR charge. As far as we know, that's all there is to it. Well, poop. Nevermind! (getting my Johns and Joses mixed up. . . I KNEW I shoulda put that Irish Stout in the stew instead. . . )

DwightT
(Idaho)

Posts:483

12/02/2008 7:33 PM
Posted By MicheleD on 12/02/2008 7:26 PM I KNEW I shoulda put that Irish Stout in the stew instead You do realize that from now on I will use this every time that you post something that I disagree with....

MicheleD
(Kentucky)

Posts:1866

12/02/2008 7:44 PM
Posted By DwightT on 12/02/2008 7:33 PM Posted By MicheleD on 12/02/2008 7:26 PM I KNEW I shoulda put that Irish Stout in the stew instead You do realize that from now on I will use this every time that you post something that I disagree with.... then you will no doubt need to save it in a text file somewhere. Something tells me that it will get used quite often.

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