legal or not? > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: legal or not?

Prev Next

You are not authorized to post a reply.

Author

Messages

SallyS2
(Oregon)

Posts:36

03/13/2010 12:09 AM
Here's a good one, We have a BOD that is a gift that just keeps on giving! On 3/10 I requested minutes from the picnic /annual meeting in 6/09 which is the time to elect a new President or Secretary. We have 203 homes ,in the minutes there was NO recording of names or a roll call of those present or if those present and voting were even owners. As it turned out they counted 37 people (17%) NOT a quorum ,and ended up putting in a new president. This has slid past everyone . I realise a long time has also pasted ,We owners assumed the meeting was done legally. This president is now possiably being recalled. We just last week served the BOD with a petition of 105 signatures calling for a special meeting. We will be discussing a misrepresented CCR which started the investagation into this Presidents bending CCR's and strong arming owners hence the vote to recall. Some owners signed to discuss the CCR issue not so much to recall, others want him tarred and feathered. There will definatly be a quorum at this meeting, I have 20 + proxys to use as a recall myself. My main question is : This President has gone around fining and threating to lien owners on the CCR he is misinterpting and the main focus in this mess. Also any thing he feels isn't to his liking. Are his actions as our HOA president even legal under the circumstance? The election information is new to us since(3/10) Idea's please?!?!

RobertR1
(South Carolina)

Posts:5164

03/13/2010 3:36 AM
Sally, I see you have 31 posts, when did you post last? I can't find you on the search feature and as you probably know this search feature is a new format. I seem to recall your last posting............but don't count on it. Anyway, this post needs to be taken apart and see if we can address these issues one at a time. The recall seems to have priority now. Let me say that as far as I know, when you do a recall you handle only that issue at the meetings. No other issues should be on the table for discussion other than the selection or election of a replacement Board member. If you want to adjourn that meeting and open another meeting, then you can do that if you follow the requirements for holding a special meeting for any specific issue. Again, I believe you just can't call for a special meeting to sit around and discuss anything that anyone wants to talk about. I would look your documents over closely about this and if nothing there, check with state requirements or non-profit requirements. Regarding the legality of that meeting, try and look at your problems more from, "what can I do now," then, "How can I change the past and how important is all this past stuff, considering the problems of the present and how to get the train back on the track, so we can get on with meeting the demands of running an association." Right now, with a recall on the table, you need to get that right. For instance, are your proxies properly worded and who is going to verify them as bonafide, who will run your recall meeting? Does your documents allow for a selected chairman or does your Board chair the meeting. Who will count votes? Do you have organization in place and a volunteer to take over the vacant position. Does your documents require this. What authority are you following to conduct the recall? Another observation is this thing about what your current President is doing. I know of no authority anywhere that gives the President the right to unilaterally take any action, certainly not fining people. Remember: The people elect the Board, the board serves the people. The Board elects the Board Officers such as president, etc. The officers serve the Board. The Board hires the M/C, manager or whatever. Those employees serve the Board. You stray out side these mandates and that are exactly that, you find trouble. I sounds like you are not playing in the sandbox, some are outside playing in the dirt.

SallyS2
(Oregon)

Posts:36

03/13/2010 9:11 AM
RobertR1, My last post and all my posts are about what will be coming to a head soon. The last one started on 2/27/10 ADDING PROXY'S and your last one to me was on 3/4/10 (your 4645 post). We have to take care of The CCR issue because the petition was originally about that only. In gathering signatures the majority wanted the CCR cleared up with this president and the recall too. We had to listen to the owners . Our assoc. has 4 BOD , 2 women of which are non participating (I've explained in prior posts) and the last is a women who has said: what ever he wants is fine with her. In her eyes he has been our savior and has no problem throwing anyone under the bus to save him! We had no choice but address the CCR and add the recall. With 85 of 105 wanting him out. We do have 2 stepping up to replace him and we're adding a third resident to break the even BOD number. " Another observation is this thing about what your current President is doing. I know of no authority anywhere that gives the President the right to unilaterally take any action, certainly not fining people " He has been acting like this since day one and like I've said NO ONE on the BOD is stopping him. He does not listen to any owner bucking his system.

MaryA1

Posts:0

03/13/2010 9:45 AM
Sally, If he is misinterpreting the CCRs and issuing fines incorrectly then, yes, he is breaking the law by not abiding by the CCRs. However, since the other board members don't give a darn about what he does and allow him to act on his own, and if the state has no governing agency to oversee HOAs, then you are doing the only thing that can be done -- requesting a recall. The fact that there is a recall action in progress has no bearing on his present position; until the special meeting he is the Pres of the BOD and can carry out his resp. as he sees fit -- right or wrong! BTW, I would be interested to know what CCR restriction he is misinterpreting. Also what are the rules regarding fining. In AZ a member cannot be fined until he/she has had the right to appeal to the BOD. Also is fining is not mentioned in your CCRs then the BOD has no authority to take this action. One final note, most CCRs give the BOD the right to interpret the CCRs but that interpretation cannot alter the meaning.

CarolF
(Florida)

Posts:212

03/13/2010 10:12 AM
SallyS2 - I'm curious about your statement that the President or Secretary is "elected" at the annual meeting. Does the membership actually elect the officers, or do you elect board members, and then the board votes on the officers?

RobertR1
(South Carolina)

Posts:5164

03/13/2010 10:50 AM
Mary, Carol and Sally, All this presents many questions and much turmoil. Mary, Do you think the President (in this case) has the authority to fine, by default, or what authority? I expect if the President fined me in this case I might not agree to pay and let them take me to court, just to clarify the doubts I would have. If the documents said a fine could be levied for some violation with Board approval, I would want to know what the vote was and see the roll call in the minutes. To me this place sound dysfunctional, I think the president is far out of line, the board should be recalled also and they should start with a clean slate. But............and a big BUT, they seemed to be down the road towards a showdown. I just hope this president don't hire some legal guns to shoot the petition down for not being proper and then the concerned folks are left to play catch up again. Don't really know about that. Any event I think Sally is trying hard and am impressed she has gotton some support, I hope that support adds a few more minds to how they are going to get the job done. It seems all that can be done now is wait till the day of reckoning, try to control the recall meeting, and hope their isn't too much fall out. It appears the owners as a whole should have reacted to this president AND Board some time ago. What advise do we now give Sally to keep the lid on this thing. I would seem to think, they should make an effort to run this recall meeting and not allow it to come under control of the principal they are trying to get rid of. If the Present President steps up and opens a meeting and declares he is going to preside, is there any authority for the folks holding the votes for the recall to motion him out of order and actually take over the meeting. Personally, I think those that presented a legal recall would have the authority to run the meeting.

MaryA1

Posts:0

03/13/2010 3:17 PM
Robert, Unless the docs specifically say so, I don't know that a vote must be taken each time a fine is levied. I know our board doesn't vote on this. We have a collection policy and the PM follows it to the "t". However, the board Pres shouldn't be acting alone, which is the impression I get from Sally's post. But, of course, if the other board members are OK with this then who am I to say otherwise. The real problem, as I see it, is that the Pres. MAY be misinterpreting the CCR restrictions. We only have Sally's word on this which is why I asked if she could post the particular restriction. The bylaws most likely give authority to the Pres to chair all the meetings of the assn. Unless he passes the gavel to the V.P. or another board member, then he has every right to chair the recall meeting. IMO, unless otherwise stated in the bylaws, no one else has the authority to chair a meeting of the assn. I know many people feel the members may call a meeting and run it but I happen to disagree with this, UNLESS it is so stated in the bylaws.

GlenL
(Ohio)

Posts:3526

03/13/2010 6:36 PM
Posted By MaryA1 on 03/13/2010 9:45 AM BTW, I would be interested to know what CCR restriction he is misinterpreting. Also what are the rules regarding fining. In AZ a member cannot be fined until he/she has had the right to appeal to the BOD. Also is fining is not mentioned in your CCRs then the BOD has no authority to take this action. One final note, most CCRs give the BOD the right to interpret the CCRs but that interpretation cannot alter the meaning. Posted By SallyS2 on 12/09/2009 7:44 PM In our CCR's our fence rule is 6' to use as a lot line barrier or you may use a hedge but it must also stay at 6'. Our problem is a new pres. who is trying to use this height rule to apply to our solid screen of cedar trees. These trees are planted 4' inside of our wood fence that we choose to be the lot line barrier on the back and 2 sides of our back yard . We have a street that runs behind our back yard. So privacy and noise blockage is very important. His arguement is the 6' rule was to preserve home owners views. There is nothing in the CCR's that restrict any landscape or even mentions views . The only thing would be blocking pedesterins is fron peeping into our home. Our CCR's don't protect views because there really aren't any.Your help or ideas would be welcomed. He has a good number of homeowners mad. He imposed a $250.00 fine on us and is going after others too. We feel power probably isn't his best suit since he has bullied one owner into tears over this Thanks for any help you could send Sally Savidge Sally Savidge (Oregon)

Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns

RobertR1
(South Carolina)

Posts:5164

03/13/2010 7:13 PM
Glen, I thought I remembered something familiar about this post and searched SallyS2, on this page but got no results. As usual Glen digs it out. I would like to bring up something that occured to me while searching something that directs who can chair a recall meeting of the Board. Let's just say that this issue Sally is involved in and this president is acting off the wall and the Board members just ignore the Presidents actions. Now we are discussing recalling the President and a couple more of the Board, let's say they have four members on a five member board. The president and 3 members. We are suggesting they all ought to go and I think there is a process active right now to do this. My thoughts are why even bring the president into it as this will only cause problems, all things equal. Why not recall three of the other board members and when you get a majority, vote the president off his position. Strictly hypothetical but seems like a better plan than involving the President in a recall.

SallyS2
(Oregon)

Posts:36

03/13/2010 9:35 PM
Thanks everyone all of this is very helpful. Glenn has found the begining of this mess. The 2 BOD that does as the president says is put in to office this way: (c) Selection of Commercial Director. The Commercial Director shall be selected by the Owner of the Commercial Lot. If there is more than one Owner of the Commercial Lot, such Owners shall together be considered a single Owner with respect to such Lot for purpose of this Subsection 3.04(c). If the commercial Lot is divided into two or more separate Lots, each one becoming a separate commercial Lot, then the Commercial Director shall be elected by a majority vote of the Owners of such Commercial Lots. (d) Selection of Multi-Family Director. For so long as there remains one Multi-Family Lot within the property, the Owner of such Lot shall select the Multi-Family Director. If there is more than one Owner of the Multi-family Lot, such Owners shall together be considered a single Owner with respect to such Lot for purposes of the Subsection 3.04(d). If the Multi-Family Lot (or any portion thereof) and the Improvements thereon are a Condominium and if a condominium owners' association has been formed with respect to such Lot, such association shall act as its Owner for purposes of this Subsection. If the Multi-Family Lot is divided into two or more Lots, each one becoming a separate Multi-Family Lot, then the Multi-Family Director shall be elected by a majority vote of the Owners of such Multi-Family Lots. If all or any portion of the Multi-Family Lot is subdivided into Single-Family Lots, then the Owner(s) of such Single-Family Lots shall have the same rights to participate in the election of the Single-Family Director as have the Owner of other Single-Family Lots. If all of the Multi-Family Lot is subdivided into Single-Family Lots, then the Multi-Family Director position shall be eliminated from the Board, and the Board shall consist of one Commercial Director and two Single-Family Directors. (e) Election of Single-Family Directors. Each Single-Family Director shall be elected by majority vote of the Owners of the Single-Family Lots, with each such Owner having one vote for each Single-Family Lot owner. If there is more than one Owner of any Single-Family Lot, such Owners shall together be considered a single Owner with respect to such Lot for purposes of this Subsection. The election of Single-Family Directors pursuant to this Subsection shall take place at a meeting of the Owners of the Single-Family Lots conducted pursuant to Subsection 3.04(f). AS YOU CAN SEE OUR HANDS ARE TIED WITH THESE TWO. WE ARE ALSO PROPOSING TO ADD AT LEAST ONE MORE RESIDENTAL BOARD MEMBER TO BRING THE TOTAL TO 5. AT LEAST THERE WILL BE AN UNEVEN NUMBER ON THE BOD. THIS HOA HAS BEEN UNCHECKED AS FAR BACK AS I CAN REMEMBER ,I'VE LIVED HERE 12 YRS AND I BELIEVE WE'VE FNALLY OPENED SOME OWNERS EYES. WE MIGHT FALL ON OUR HINIES BUT AT THE END OF THE DAY PEOPLE ARE AWARE OF THE BODS ACTIONS. THIS ASSOC. ALSO HASN'T BEEN AUDITED EITHER! WE ARE NON-PROFIT AND THIE PRESIDENT TOLD MY HUSBAND AND I THE ASSOC. HAS 100.000 IN ACCT. HES ALSO COMMING UP WITH CREATIVE WAYS TO SPEND IT.LOAN TOOL PROGRAMS-PAPER SHREDDING DAY ETC.

RobertR1
(South Carolina)

Posts:5164

03/14/2010 3:13 AM
Sally, Is this right: The president comes from a single family lot and was elected by single family votes! How many lots? How many votes? One of the other director comes from a multi family lot and was elected by multi-family votes. How many multifamily lots are there? Where do these people live? The third director was elected by the people that hold commercial lot votes. how many commercial votes are there? Where do these people live? How can you recall the Multifamily lot director? How can you recall the Commercial Lot director? When was the HOA turned over to the Vote holders of the corporation? Do you have open Board meetings? Does your documents provide for the proceedings of these meetings? Are the minutes published along with financial documents? Do you have Annual meeting and are elections held by vote? You know Sally I could just keep going on and on, and I can't imagine your HOA is as bad as it sounds to me, so I expect I don't understand half of this. After all is said and done there is less done than said, so bottom line for me is to say, you all need a good Oregon HOA Attorney. I have no idea why your documents are written this way, but suspect it was put in there by the developer to enable him to do what ever it was he wanted to do and you all are left with this mess. I could be completely wrong and lack information and smarts. Whatever...........I honestly don't know what opinion or advise to give you.

MaryA1

Posts:0

03/14/2010 8:37 AM
Sally, Do your gov docs or state law address recalling a director? If you are wanting to recall a director from a different classification I really don't think that is possible. Regarding the CCR restriction about fences, it is a bit ambiguous. It says fences or hedges but does not say trees. I believe it could be interpreted to also mean trees. But, if the board has adopted this interpretation, they should inform the members accordingly. Even though it appears that many of the members feel trees are not included (only because they are not specifically stated) that doesn't mean the Pres' interpretation is not correct. B/4 recalling him on this point only, IMO it would be in everyone's best interest to ask the BOD to obtain a legal opinion. Just my opinion of course!

SallyS2
(Oregon)

Posts:36

03/14/2010 8:20 PM
1. yes , but this President had 37 out of 203 there were no quorum and no roll call or registration at the meeting -just minutes saying 37 people voted him in (no proof the people were even owners) 2. no the board member is decided by the owner of the complex , it's a apartment complex 3. it's the same as the apartments 4. we can't 5. we can't 6. there is no holders in the corp. 7. they are suppose to but meet on their own , with no notice to owners 8. yes but are being ignored 9. we have requested them and the sec. has sent them. this is how we found out about the no quorum meeting 10. yes we have a annual meeting ,but hardly handled correctly. This is the most messed up HOA I've every heard of. these problems had just started with the new President . like I've said we are being held hostage by this. the newest news is now he is trying to say the petition will only be about 1 topic and a recall isn't going to be on the table- despite bylaws that say the contrary. Your right the only way the resolve this is with an HOA attorney. thanks for all your help, just be thankful your not us. I really doubt HOA's were to be dictators in disguises

RobertR1
(South Carolina)

Posts:5164

03/14/2010 9:40 PM
Sally, Copy these question and then paste your answer to each question along side the question. You seem to have a way of avoiding the question or not considering the reason for the question. I am trying to find out if your association has had a transition meeting that passes the control of the developer to the Home Owners. Then reconsider your answers if the developer still has control, if he does when is turn over expected. And no, you are not the worst and certainly not the only association that will not stand up and be counted. You are not trying to do something simple, and you will find it gets harder as you go along. But it is worth doing and there are associations out there that drift along for years until some homeowner wakes up and says, What the hell is going on here. In any event the change you want, as soon as you all find out who you are, will be slow and take lots of time and effort. I understand you are going to say, you are all alone, and no one cares, but don't get stuck there. It maybe that no one cares but you are not alone, each and every homeowner is in this up to their lazy necks and when it comes to money they will become vocal, so tell them what this is going to cost them to sit on their butts. Just be smart and don't stick your neck out. Sally, do you honestly believe your HOA was operating smoothly before this guy took over. Did you have meeting then and all the things you desire now? Do you have copies of these meeting where elections were held and votes were taken and a roll call was posted?

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > legal or not?