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GeorgeS21
(Florida)

Posts:441


07/07/2018 10:40 AM  
Hi All,

Starting a new thread due to special circumstances of the HOA being "voluntary."

You have all heard me whine about this voluntary thing, previously.

Was looking for some thoughts regarding how to ensure everyone in the neighborhood KNOWS who is an HOA member and who isn't.

Quick review - 189 single family homes on small lots, in a geographically common area. Common park and common entry with landscaping, lighting signage requirements. About 57% of the property owners pay dues - the other 43% does NOT contribute in any way - obviously 43% are taking advantage of the 57%. Membership in the HOA is defined as having paid dues for that year.

Lots of ways to dice how to point out who is paying and who isn't - least obtrusive would be to simply publish the list of Members - by definition, anyone not on the list is not a Member - and, by definition is not paying dues.

We're probably gonna have a website in the next 30 days - was going to put the list there, as a start.

Thoughts?
SueW6
(Michigan)

Posts:291


07/07/2018 11:30 AM  
If you MUST print the members, just print the addresses.

As with any voluntary group, for trying to increase membership, you must help people see the advantage of being a member. That would be a good task for the group to do this year.

KerryL1
(California)

Posts:5535


07/07/2018 1:32 PM  
Thanks for the review, George. It doesn't sound like it, but are there ANY amenities that the Board can remove from non-members' use?

Put another way, and differently, is there anything at all that could be removed from non-members that member pay for?

AugustinD


Posts:1082


07/07/2018 3:33 PM  
Posted By GeorgeS21 on 07/07/2018 10:40 AM
obviously 43% are taking advantage of the 57%.
<

If a legal obligation to pay does not exist, then I do not think anyone is taking advantage of anyone else. It's as if someone came to my yard and planted a nice rose bush, then asked for compensation. I did not ask this person to do this. Why should I pay this person?
SheliaH
(Indiana)

Posts:2231


07/07/2018 3:51 PM  
I suppose you could publish the addresses of the members, but why do the members need to know who the nonmembers are? If the 43% aren't getting any services that the members pay for, that should be the only thing the members should care about. It doesn't sound like you have a lot of common areas anyway (if there's a common park, could that be fenced off and accessible only to members?)
GeorgeS21
(Florida)

Posts:441


07/07/2018 4:07 PM  
Augustin,

Actually, it would be more like our houses are worth the same because I mow your yard and my yard - you would be benefiting from my level of effort.

Everyone paying now is paying almost twice as much as they should be - i.e. if everyone paid their fair share, dues would be nearly half as much per property.

Sheila,

The non members ARE getting landscaped entrance to the neighborhood, park maintenance, lighting for the entrance and park.

Kerry,

Nothing definitive. As another odd aside, the 1 acre plus park must be maintained, so the HOA pays for that, BUT, the park is actually owned indivisibly by all 189 property owners.

I got funding for a website and am about 50% finished populating it. We will announce it soon, and I will let everyone interested register for three months, then pitch membership to them.

Sue,

We've been working to increase the membership. We got a few by reminding them, I got quite a few with a very direct letter to the other non resident owners, we got a few by increasing our level of activity enforcing the CC&Rs. Not sure there is much difference these days with open access for ownership records online with the county tax assessor. Part of our Board is of the opinion that it could be beneficial to make sure those with freeloading neighbors know about it - and, which ones - perhaps the payers can motivate the non-payers.
AugustinD


Posts:1082


07/07/2018 4:20 PM  
Posted By GeorgeS21 on 07/07/2018 4:07 PM
Actually, it would be more like our houses are worth the same because I mow your yard and my yard - you would be benefiting from my level of effort.


The non-members did not ask any of the members to pay anything. It's entirely possible that many non-members simply cannot afford the dues. Instead of enticing non-members to join through shaming them, I think you will just create more who hate your HOA and are even less likely to become members. I would not think highly of a board who published the names or addresses or any info about non-members.
GeorgeS21
(Florida)

Posts:441


07/07/2018 4:44 PM  
Augustin,

So, it’s kinda like welfare?

Everyone in the community can afford it.- many are overheard laughing about the suckers that pay.

BUT, they then advertise their houses for sale and tout how nice the community is.

Guess this “fairness” thing isn’t making sense to you.

If everyone paid, dues would be about $45/yr.

We’re doing everything positive possIble - we are also going to start pointing out who pays and who doesn’t. This has zero downside - we hope the education of who is carrying who will eventually be helpful - maybe not this generation of freeloaders, but perhaps the next.

The more that pay, the lower the dues - and the greater the fairness.
KerryL1
(California)

Posts:5535


07/08/2018 12:16 PM  
I've been thinking about this off and on. I'm feeling like publishing the name of members is a pretty good idea, but not the names of non-members.

I know you've been working hard to increase membership. I also think with your small dues, it's hard to come with extra funds. But I wonder if you could have raffle that only include embers for perhaps a certificate for a nice dinner as the prize. Or even $xx to spend at your local grocery market.

I assume nonmembers aren't allowed at your board meetings or members meetings, right? Perhaps publicizing how important (and fun??) these meetings are would entice some to join.

Is there any access control--fobs, for ex., at your entrance, or can anyone drive onto your premises?
GeorgeS21
(Florida)

Posts:441


07/08/2018 12:49 PM  
Good stuff, Kerry - thanks.

Public roads, open access ...we could prevent non members from sitting on the concrete benches in the Park, but since all owners own 1/189th of the park, that’s about it.

Annual meetings ....the HOA used to allow non members to attend ...and, as hard as it is to believe, the non members complained bitterly about the entrance not being kept up the way they wanted ... I know, I know ... unbelieveable.

I explained to the Board this needed to stop ...But, this was the same Board that didn’t know that Board meetings had to be open to all Members ...

We’re working on it ... I may do some politicking this year with Florida legislature and governor to come up with some way to transition voluntary HOAs to mandatory - without the 100% requirement - there are hundreds of these stupidly organized communities in Florida.
JanetB2
(Colorado)

Posts:4151


07/09/2018 10:11 AM  
Posted By KerryL1 on 07/08/2018 12:16 PM

I assume nonmembers aren't allowed at your board meetings or members meetings, right?


They would have to be allowed ... It is a VOLUNTARY HOA and not “Mandatory”. Therefore, all owners whether paying or not are still members of the Association. Which is why I would contend if they have a list of Members it must include ALL Owners who are HOA Members. Technically they essentially have some of the voluntary members pretty much just “donating” to the non-profit Voluntary HOA.

LOL ... the developer who set up an HOA with common area property as a Voluntary HOA should potentially be tarred and feathered. If there is that much common area property a court might decide to make it a Mandatory HOA, if possible under the Statutes. If the OP gets enough owners to agree they might be able to “petition a court” on this issue and could check with an attorney to see if feasible.


KerryL1
(California)

Posts:5535


07/09/2018 3:18 PM  
Ah, I see I mistakenly replied on one of George's other threads. But here's basically what I said:

Janet raises an interesting point, George. How is the word "members" defined in your documents? But I see it on your other thread, as Richard pointed out to me:

"ARTICLE II
DEFINITION OF MEMBER
Membership in the Association is open to all property owners within the XXX Planned Unit Development. Membership is defined as having paid dues for the year under consideration."

Even if members of your Board each contributed enough for a $50 prize of some kind to members only, it might entice a few to join as actual members.


JohnC46
(South Carolina)

Posts:7635


07/09/2018 5:06 PM  
George

Several posters might be onto something as it what privileges do dues paying members have over non-dues paying members? This bears more looking at to encourage non-paying members to become dues paying members.
JanetB2
(Colorado)

Posts:4151


07/09/2018 6:26 PM  
George ... Again, I would recommend you discuss your issue with an good Attorney (or get an opinion from 2-3 ... many attorneys will offer a free or low cost “consultation”) and ask about petitioning a Court to potentially make your HOA a “Mandatory HOA” due to the “Common Area Property” owned by all the homeowners. This could potentially be viable depending on the percentage of neighbors you have on board vs the total number of homeowners. I am starting to have a feeling that the road you are pursuing could potentially end up with a costly lawsuit down the road. And that lawsuit could potentially be a 50/50 chance of which side wins depending on the circumstances.
GeorgeS21
(Florida)

Posts:441


07/09/2018 9:11 PM  
Janet - interesting idea on petitioning the court ...interesting. Will give it some thought.

I don't know what sort of lawsuit you are referring to ...? Who is suing? For what?
AugustinD


Posts:1082


07/10/2018 6:23 AM  
Posted By GeorgeS21 on 07/09/2018 9:11 PM
Janet - interesting idea on petitioning the court ...interesting. Will give it some thought.

I don't know what sort of lawsuit you are referring to ...? Who is suing? For what?



She wants the members and board of the voluntary HOA to sue the non-members subject to the covenants to force the non-members to become members and so become subject to any HOA assessment. Her reasoning appears to be like yours: "It does not matter that members and non-members alike agreed to the same covenants, mandating a voluntary HOA. In fact, the hell with contractual rights. The non-members enjoy the benefits of the common property, so they should pay up. " As you pointed out George, and from all my reading on voluntary HOAs, this will not happen without agreement of 100% of the property owners who are subject to the covenants. I believe the 100% requirement is a reasonable term of the contract. All agreed to it. I think the case law is pretty clear in these cases that 100% means 100%.

George, you said you were thinking of lobbying the legislature on this point. If the legislature did enact a statute that said say, "The part of CC&Rs for voluntary HOAs that says 100% agreement is needed to convert to a mandatory HOA is now null and void...," then I think a court would throw this statute out on federal and state Constitution grounds, regarding the effective taking of property (rights).


From http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/207643/Default.aspx:
As soon as the pro-mandatory side felt they had enough to win they started enforcement on the rest of the neighborhood and then things got ugly. Neighborhood one started threatening lawsuits and most people gave up but one homeowner sued them and 50 of his neighbors for the illegal conversion costing hundreds of thousands (the lawsuit lasted several years) and eventually resulted in a judgement against the HOA bankrupting it.

Neighborhood 2 "converted" back in 2001. Nobody challenged and the HOA started going after people. They screwed up and MRTA caused the restrictions to expire. They decided to ignore the law and threatened lawsuits. Some homeowners challenged them and it has essentially boiled down to lawyers going back and forth for years, with the HOA demanding submission or else and when confronted they back off.
GeorgeS21
(Florida)

Posts:441


07/10/2018 9:37 AM  
Yeah ... no high probability "good" outcome ...I think everyone recognizes that.

We're aware of MRTA and requirements - have a few years to get done - I've recommended doing it while we're thinking about it :-)

I've heard of neighborhoods in our position doing the conversion "over time" - i.e. get everyone who will agree to mandatory HOA to sign up, then, over time pick up the folks who didn't want to initially, or when they sell their homes getting the new owners ... this is the low stress, friendly approach ... BUT, I don't know if this is even possible ... an attorney hired to assist would likely say, sure, let's try, and then just hang on, regardless ... good opportunity for billing hours?
JanetB2
(Colorado)

Posts:4151


07/11/2018 11:47 AM  
Posted By GeorgeS21 on 07/10/2018 9:37 AM
Yeah ... no high probability "good" outcome ...I think everyone recognizes that.

We're aware of MRTA and requirements - have a few years to get done - I've recommended doing it while we're thinking about it :-)

I've heard of neighborhoods in our position doing the conversion "over time" - i.e. get everyone who will agree to mandatory HOA to sign up, then, over time pick up the folks who didn't want to initially, or when they sell their homes getting the new owners ... this is the low stress, friendly approach ... BUT, I don't know if this is even possible ... an attorney hired to assist would likely say, sure, let's try, and then just hang on, regardless ... good opportunity for billing hours?


You should have a consultation with 2-3 attorneys. Many will offer a “short” maybe 30 minutes for free and charge if more time. However, if you go in with a list of simple questions and do not get off on tangents, then it could be low or no cost consultations. I’m not sure if petitioning a court is the same as technically suing. You are essentially getting a Court “opinion” on whether an HOA which has “Common Area” that needs to be somehow maintained financially should be Mandatory or if should still be Voluntary. It could set a legal precedence that would need to be addressed either via court or legislative.

GeorgeS21
(Florida)

Posts:441


07/14/2018 4:51 PM  
Janet,

Love the idea of petitioning the court ...this is certainly a strategic idea ... will see what kind of interest I can get from the Board. If sufficient, will talk with an attorney.
JanetB2
(Colorado)

Posts:4151


07/14/2018 7:26 PM  
Posted By GeorgeS21 on 07/14/2018 4:51 PM
Janet,

Love the idea of petitioning the court ...this is certainly a strategic idea ... will see what kind of interest I can get from the Board. If sufficient, will talk with an attorney.


Again ... you need to check with an attorney to see if a viable option, but it does potentially give an alternative option. While I would do this in some states I am very familiar with their State Statutes if in your situation ... Florida has some way out there laws, so not positive if they would allow. But hey ... does not hurt to ask and as noted some attorneys will offer consultations at no cost or low cost ... so call around and consult with 2-3.

Before the lawsuit I had in our last HOA against two developers I consulted with potentially 5 attorneys before choosing one. The majority of those sided with the Developer. When I found one who saw our view and asked why he believed we could win and he showed the statutes violated and gave reasons ... I knew that was the one. Care to guess who came out ahead
GenoS
(Florida)

Posts:2291


07/15/2018 2:53 PM  
Going out and finding several attorneys who will give you an initial consult for free is easier said than done. We went looking for a new HOA attorney earlier this year. We spoke with 4. We had business to give them and we inquired about general things regarding what sort of advice and service we could expect. 3 of the 4 charged us for the preliminary consultation. The one we chose didn't charge us for the hour and that, as far as we know, was a quid pro quo since they got the job.

Plan on paying every single attorney you speak to. If you can negotiatie a free consultation, great.
JanetB2
(Colorado)

Posts:4151


07/15/2018 11:13 PM  
You usually can find out the consultation fee for X amount of time when you call for an appointment. We only had one which we had to pay and which was slightly above the consultation time as we wanted them to review the documents and provide a report, but all the others were free.
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