Billing Members

What does ADR mean?

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.

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.

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.

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. "

"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 . . .

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.

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.

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?

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.

I think you are correct.

And I don't think the lawsuit will end the way the board thinks it will end!

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.

Well, poop.

Nevermind!

(getting my Johns and Joses mixed up. . . I KNEW I shoulda put that Irish Stout in the stew instead. . . )

then you will no doubt need to save it in a text file somewhere.

Something tells me that it will get used quite often.