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Subject: Suing my HOA
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Author Messages
OutC
(Missouri)

Posts:21


06/17/2013 12:06 PM  
This is an HOA, not a condo. The various Boards for the past 30 years have flagrantly violated the CC&Rs written in 1939, (which they call "outdated") by charging as much as 5-10 times more--varying every year that the Board decides it "needs more/has too much" money. I thought getting on the Board would begin to change things, but I have been verbally attacked for 4 years, trying to get the Community to recognize the documents. All that getting on the Board accomplished was a peer-director getting 3% of the Community that attends meetings to vote me off after 1 year. I got on the Board again, but decided to sue for the amounts over and above what I should have been charged all these years, according to my "Contract"--the CC&Rs written into my home owners title and deed. Small claims court is in less than a month and the Board has decided to spend up to $5K on an attorney.
I understand Small Claims is about 3 things: Was/Is there a contract? Was there a breach? What will it take to make me "whole"?
I don't mind presenting my own case (can't afford a lawyer anyway) next to The Suit, because I feel confident I have all the marbles. But am I on the right track?
Thanks.
CarolR11


Posts:0


06/17/2013 12:11 PM  
Do your state laws say anything about the maximum amount (%) that HOA dues may be raised in a year without owners voting on the matter?
CarlA3
(Florida)

Posts:4


06/17/2013 12:12 PM  
I am in the process of doing the same thing. My case is for selective enforcement. good luck.
MelissaP1
(Alabama)

Posts:10521


06/17/2013 4:13 PM  
Suing your HOA is suing yourself and your neighbors... A court can only make you whole. So unless you spent money or the HOA spent money, your not getting anything much out of this...

Former HOA President
JonD1


Posts:0


06/17/2013 4:46 PM  
So documents written in 1939 can't be outdated?

My guess they would have to be.

I would have to wonder if the Board members paid these same increases? So the OP was not singled out.

Before I took my property to court I would have to ask just what am I trying to accomplish. Improving and benefiting the property or getting revenge against those who I believe wronged me?

And IF the OP were to prevail what affect and cost would that have for the other owners?

Anyone who represents themselves in court has a fool for a client. I have seen judges and lawyers who lack any real understanding of HOA laws (and in most cases it would pay to have a full understanding of the property's documents and state law) and most of them have a law degree! Now the OP seems to believe three simple steps and we are off to making him whole. My guess far more complicated than that. I would be concerned that the HOA request to have their lawyer's fees covered in the event the OP fails. Not sure about the state law or what the documents might permit but I would know the answers before I arrived for court.

And the OP seems to hold it against the Board they hired a lawyer. Well when you sue people they have the right to defend themselves you don't get to control that. And as an HOA Board it would be irresponsible NOT to have a lawyer defend this type of case.

The Board's duty is to manage the affairs of the property. To collect and pay out what is necessary to cover the costs of running the property. In many cases Board's have protection under the law in using their best judgement as non-professionals. To increase the dues higher than the OP feels necessary or perhaps the 1939 documents allow well then what was the other option?

I would hope the OP lets us all know how this matter is decided. Win lose or draw suing your property and neighbors most times comes with a cost. In many ways.

CarolF
(Florida)

Posts:434


06/17/2013 5:07 PM  
Is this joke? How could you possibly think that you can maintain your community based on what it cost to do so in the 30's???
JonD1


Posts:0


06/17/2013 5:20 PM  
The developer estimated landscaping costs per year were $1,500 for our property. That was in 1982. Today, the annual costs approach $25,000. So how would a Board operate the property unless they raised the funds to pay those costs?

My guess the OP is searching for an issue to make a point which serves no one but himself.

AnnH4
(Florida)

Posts:53


06/17/2013 6:02 PM  
Posted By OutC on 06/17/2013 12:06 PM
This is an HOA, not a condo. The various Boards for the past 30 years have flagrantly violated the CC&Rs written in 1939, (which they call "outdated") by charging as much as 5-10 times more--varying every year that the Board decides it "needs more/has too much" money. I thought getting on the Board would begin to change things, but I have been verbally attacked for 4 years, trying to get the Community to recognize the documents. All that getting on the Board accomplished was a peer-director getting 3% of the Community that attends meetings to vote me off after 1 year. I got on the Board again, but decided to sue for the amounts over and above what I should have been charged all these years, according to my "Contract"--the CC&Rs written into my home owners title and deed. Small claims court is in less than a month and the Board has decided to spend up to $5K on an attorney.
I understand Small Claims is about 3 things: Was/Is there a contract? Was there a breach? What will it take to make me "whole"?
I don't mind presenting my own case (can't afford a lawyer anyway) next to The Suit, because I feel confident I have all the marbles. But am I on the right track?
Thanks.




To be honest, not too sure what you are asking about. What do the CCRs state about fees? Do they stipulate that they can only be raised by a certain percentage without the vote of the homeowners? What do the HOA's accounting statements look like? Are you accusing your HOA of collecting money and using it for something other than for what it is intended? At this point, if you do not have a case, are you at risk of having a judgment against you for the HOA's attorney fees?
NancyG3
(North Carolina)

Posts:342


06/17/2013 7:03 PM  
Jon is right on when he said "Anyone who represents themselves in court has a fool for a client." I did this once and lost my case. Afterwards I knew if I had an Attorney with me I had a better chance of winning. Then I was sued by the Board and I had an Attorney and they didn't. I won against them. It is common knowledge, even in small claims court, the party represented by an Attorney usually wins. However, if you lose you can file to be heard in a higher court. I agree with one of the other responders unless there is a large monetary reason, why go through all this? Good luck it will be difficult.
TimB4
(Virginia)

Posts:17766


06/17/2013 9:01 PM  
OutC,

You elude to an issue of overcharging but you don't specify why you believe the Board is violating your CC&Rs.

What do the CC&Rs say regarding budgets and assessments?

As it appears that Missouri doesn't yet have any HOA laws (they do have COA laws), the language of the CC&Rs and any amendments to them will be important.
SteveM9
(Massachusetts)

Posts:3615


06/18/2013 8:16 AM  
Your lumping too many separate issues into one.
OutC
(Missouri)

Posts:21


06/18/2013 9:18 AM  
Stated my case as simply as I could because it's not complicated.

In 1939 land was outside City limits. The original responsibilities as dictated by the CC&R have now ALL been overtaken by City expansion, thus, taxation: street lights, fire and police protection, mail delivery, etc.
Document has a non-amendable cap on the ROA.
Document does provide for termination of the association.
No lawyer or court has the ability to change the doc. except 2/3 owners and they STILL cannot change the unamendable ROA.

This site seems heavily weighted to attorney-members. And no one responded to my question of the purpose of SCCt, i.e., "I understand Small Claims is about 3 things: Was/Is there a contract? Was there a breach? What will it take to make me "whole"? "
GlenL
(Ohio)

Posts:5491


06/18/2013 10:49 AM  
Out, sorry if I'm being dense but what are you wanting to accomplish? Do you want the assessments rolled back to 1930's rate or what do you want to be made whole? You say the CC&R's state this or that but we don't know what they say or how they say it, nor do we give legal advice. You go to court and you take your chances, you have a 50/50 shot of winning.

Studies show that 5 out of 4 people have problems with fractions
GlenL
(Ohio)

Posts:5491


06/18/2013 10:53 AM  
Oh I forgot, don't post on a pro HOA website and be surprised you get pro HOA responses. And for the record if we think the HOA is in the wrong, we say so. But as been posted elsewhere there are usually three sides to an argument, your side, their side and the truth.

Studies show that 5 out of 4 people have problems with fractions
TimB4
(Virginia)

Posts:17766


06/18/2013 10:55 AM  
OutC,

I am not an attorney, nor do I work in the legal profession. I suspect that this is the case of 90% or more of the members of this site. However, most on this site have served or are serving on their Associations Board of Directors and/or various committees that we have learned a few things along the way. We are certainly willing to share what we have learned but, as I said, we don't have the training to offer legal advice.

All we can do is offer advice based on the information you have posted, our personal experiences, any research we have done and, hopefully, some common sense. If any of those things change, the advice provided may change. Please remember, what may be common knowledge to you is not common knowledge to us.

As to your question of what is the purpose of small claim courts, I offer the following link:
Missouri Small Claims Court Handbook by the Missouri's Bar Young Lawyers Section. I hope it helps answer some of your questions.

Since you have not answered my questions about what the language is in your CC&Rs regarding the rate of assessments, I can not offer further assistance.


BTW, contrary to your statement, a court does have the ability to change the terms of the CC&Rs.

Tim
JonD1


Posts:0


06/18/2013 3:26 PM  
Posted By OutC on 06/18/2013 9:18 AM
Stated my case as simply as I could because it's not complicated.

In 1939 land was outside City limits. The original responsibilities as dictated by the CC&R have now ALL been overtaken by City expansion, thus, taxation: street lights, fire and police protection, mail delivery, etc.
Document has a non-amendable cap on the ROA.
Document does provide for termination of the association.
No lawyer or court has the ability to change the doc. except 2/3 owners and they STILL cannot change the unamendable ROA.

This site seems heavily weighted to attorney-members. And no one responded to my question of the purpose of SCCt, i.e., "I understand Small Claims is about 3 things: Was/Is there a contract? Was there a breach? What will it take to make me "whole"? "




The header at the top of this site's home page states:

"A positive place for association leaders to share ideas and learn"

Association leaders meaning HOA Board members.
"positive" meaning beneficial to the Board and the property

Not complicated at all.

OUT clearly is seeking support for his decision to sue his HOA. And reassurance that he has a good chance of being "made whole".

Going to court without a lawyer is a fool's charge. But when OUT can get himself to believe 3 simple steps leads him to a place where he cashes in well off we go.

Now what is OUT hoping to accomplish? Being pauid back for the dues he was charged without justification or authority to do so? And if OUT were to prevail how much is he looking to pocket to be whole again? Now if that occurs do we then conclude the rest of the owners would also need to be paid back? And if so WHERE would that money come from?? Anyone other than he owners???

So far OUT has filed his claim. He has a rpoblem with the HOA spending $5,000 of his money and that of his neighbors to defend this suit. So far OUT has cost his property at least $5,000. Other than the lawyer who has made out??

And OUT provides us with the news the city now provides police mail and fire services so therefore suggesting the HOA has little if any cost and no real need for funds of any kind. Is OUT familiar with the details of the preoperty's operating budget at all??? What's your guess?

And no this site is not weighted to attornies but rather to HOA Board members who have to deal with such lawsuits when the person bringing the suit has litle if any idea what is in fact legal, what is in fact permited to be done by HOA Boards, what cost their actions wilol have on the property, what damages a pending lawsuit might do to the property values and the difficulty a pending lawsuit might cause to anyone seeking financing through most banks.

So NO I don't really see much in the way of positive ideas here or anything I would like to learn. My guess OUT will learn a lesson when he appears in court suggesting to the judge about an existing contract, the contract in his view being breached, and what amount of money he now gets paid to make him whole at the expense of the rest of the property owners.

YES small claims court is simple. You show up and most days they cut you a check for whatever amount you decide. That's how it works.

Not complicated at all....................

CarolR11


Posts:0


06/18/2013 3:47 PM  
As others have written, OUT, a huge majority on this site aren't attorneys at all--perhaps none. But to try to grasp your situation, some of us want to know:

(1) What exactly do your governing documents say about how much dues can be raised in any one year???? Is it a percentage?

(2) If they are vague, what do your state statutes say, (if anything)?

If you want to know how some of us might assess your chances, answer these two straightforward questions.
MelissaP1
(Alabama)

Posts:10521


06/18/2013 4:03 PM  
I am confused by the 1939 date associated with this. It does not seem possible a HOA was formed in that time period. It sounds more like deed restrictions on the property that is the issue here. I don't know how the property is set up if it is condo's, townhouses, or separate homes sharing common property?

A HOA is ONLY funded by it's member for it's members. It is to be a non-profit typically. Which means it is to spend the amount of money it collects on it's expenses for operation. So I don't see how your out any money if you enjoyed the benefits of it. That being any amenities, shared property maintenance/costs, property insurance, or other expenses of your HOA incurs. Even if you never go to the pool or use the insurance, it is there for a purpose that has to be paid for. A pool attract buyers. Insurance protects the HOA. It costs money and that expense increases over the years.

No your not going to get reimbursed any spent money on dues. It's your responsibility to pay those or be forced out by foreclosure. The court isn't going to make you whole by even giving you back your lawyer/court fees. This is something you brought up. It's more likely they will make YOU pay for the HOA's legal costs. Considering they are the ones not being made whole by being forced into a lawsuit.

We are NOT lawyers here. We are very experienced and knowledgeable HOA members who have an understanding of how HOA's work. Sometimes they do and sometimes they don't. We will tell you why that is and what options you have to correct or live with. Suing for suing sake is a sign of not having a grasp on the HOA concept at all.

Former HOA President
JohnC46
(South Carolina)

Posts:11507


06/18/2013 6:04 PM  
Posted By GlenL on 06/18/2013 10:49 AM
Out, sorry if I'm being dense but what are you wanting to accomplish? Do you want the assessments rolled back to 1930's rate or what do you want to be made whole? You say the CC&R's state this or that but we don't know what they say or how they say it, nor do we give legal advice. You go to court and you take your chances, you have a 50/50 shot of winning.




Well said.
OutC
(Missouri)

Posts:21


06/19/2013 10:00 AM  
Doesn't matter. It's a non-amendable cap.
OutC
(Missouri)

Posts:21


06/19/2013 10:06 AM  
Jon
Is a marriage license issued in 1939 outdated? Or a land title? This is not about revenge...the entire community has been “wronged.” Of course a lawyer will MAKE it more complicated, but a cap on assessments is clearly a simple issue. Protection under our bylaws and state law is not afforded Board members who are guilty of “willful neglect” which is what they are doing when outright ignoring the CC&R. Have already stated the other option(s): follow the document or terminate and start a voluntary—also a very real possibility that the judge could declare a judicial dissolution, allowed by state law.

Carol
No joke. No provision for increases. In fact, a stated “no right to change the ROA.”

Ann
Your questions are answered in my post.

TimB4
Okay, I apologize. There's just been so many here who are ready to excoriate me for wanting a PRO-document stance from my HOA. I was given a copy of the MO handbook and have read it. It give very general information about filing, etc., because only a small percentage of cases, I'm sure, are regarding HOAs. Please re-read and you will see I have answered your “language” questions. And in MO, a judge can issue a judicial dissolution if the qualifiers are there (can't get quorums to meetings, not enough money to operate the HOA, etc.) but not to change the terms...at least not mine, because there is a termination option written into the document.

SteveM9
These comments are creating separate issues where there are none. My question was, what part do contracts play in SCCt? Highly significant, not at all, or somewhere in between?

GlenL
If this is such a PRO-HOA website, then I would expect PRO-HOA responses. Not one so far has said that my CC&R is a legal, binding document that should be followed to crossing the “T”. If the document is the “truth” then why do you place me on another “side”? Wanting my Board to uphold the CC&R must be a really terrible thing. And if no Boards in 30 years have done so, then shame on them! Even thought I have told you, no one needs to know what they say, just that it is binding and legal.


Jon D
Of course I am familiar with the budget. Services have been added that are now duplicated by the City. I am not charging anyone with with misappropriation of funds, although they have acted in “willful neglect” by not following the CC&R. Mine is only one case, not a class action suit. If others decide to follow my lead, then the Board may have a problem. What I am asking is not “whatever I decide” as you state. My request is very specific to the CC&R. Once again, don't second guess my reasons. I merely am asking the Board to follow the document or change it to reflect what they are doing! If they can't change it, then they can walk around the Community and get 2/3 members to terminate the HOA. If they can't do that, they'll have to work with a 1939 budget. THAT is PRO-HOA because that is what the CC&R says! Not complicated at all.....................

Carol,
Again, no increase. No percentage. State statutes cannot override a legal document. (If so, the state could make my parent's marriage null, or give their home to a neighbor.) The CC&R only bows to local, state or federal government if/when any part is in violation (like a civil rights issue) and as you all know, that does not invalidate any other part of the document. Is that straightforward enough for you to assess my question of how a contract may be introduced into SCCt?

Melissa, There were many HOAs in that time period, so please don't let that confuse you. I have said this is not a condo. It is an HOA with 500 single, individually owned residences. There is no more “common property” as it was all absorbed by the City when annexed 50 years ago. Benefits that I received or didn't receive don't matter here because the dues were illegally collected when they exceeded the cap as designated by the CC&R. I don't know how what I have said has led so many here to believe I am “suing for suing sake” or that I don't have “a grasp on the HOA concept.”


I have tried to address all of your concerns in the above paragraphs. I do hope someone will address my question about whether the main proof required in a SCCt is whether a contract exists. I do, however, apologize for presuming this where lawyers hang out, since several of you have indicated you are not such.

EllieD
(Vermont)

Posts:446


06/19/2013 10:48 AM  
OutC,

For whatever reason - you choose not to post the words from your CC&Rs – so I continue reading hoping that you might post the the exact words, dealing with “dues assessments”, and in context.

You also wrote “It's a non-amendable cap”. Again it would be informative if you would post the exact words from your CC&Rs that state this.

Has it occurred to you that a Judge might rule that your CC&Rs, contain an obvious “typo”? And that what was “really meant” and/or that the “intent was”, and that it should have been written “……………”.
WayneF2
(Illinois)

Posts:11


06/19/2013 10:51 AM  
So here's how this is going to go down... (IANAL)

You file in Small Claims court and claim the HOA owes you (say) $5000 which is the amount of money you have paid over the cap for the past 30 yrs. The HOA sends their lawyer to represent them and let's assume that costs another $2000 including court costs etc.

There are 2 possible outcomes:
1. The judge reads things and decides you are wrong -- the HOA has costs to cover and the fact the document does not allow them to increase HOA fees was dumb and should be stricken. Now you're out time and you owe $2k to the HOA since they filed a counter-claim for the lawyer and court costs.
2. The judge reads the document and he agrees with it -- the cap has been exceeded -- so you "win" your court case. Yay!!

Let's assume you win since you are so confident in your case. So now the HOA makes a special assessment to pay you since we've got a $7k hole in our budget. So all your neighbors chip in $14 each to pay you and the lawyer, and you are made whole with a check for $5000. Congratulations! (BTW I hope you don't mind cleaning up after your house is egg'ed and TP'ed by the neighbors.)

Two of your neighbors hear about the case and say, hey waitaminute, I've been here for 30yrs too, and they file a similar suit. The HOA lawyer makes some more money settling things and again some money just shifts around between neighbors (small amounts out from everyone, a large amount in to a single person).

If you get really lucky, people just rattle their sabers saying they will file court papers and instead of actually going to court and spending money on the lawyer and court costs you just get the cost down to $5k per person/claim.

Everyone in the HOA does it and $14 comes out of their pockets 499 times and $5000 goes into their pockets one time.

Run the math. You'll see that everyone has spent $7000 and only gotten back $5000. Including yourself. So you're out $2k again. This is the definition of a lose-lose proposition!

Taking the HOA to court over this is a waste of your time and everyone's money. This is a terrible way to force a "fix" to some documents that are out-dated and require updates. Instead you should focus your energy to work with the HOA and Board to get the documents fixed, and save yourself (and all your neighbors) that $2k each (times 500 neighbors, this is a huge sum of money wasted in the legal/court system).

If your argument is with the way these funds are being spent, that is an ENTIRELY DIFFERENT MATTER and one that should not require suing your HOA to have a discussion about. Ask the Board/Treasurer for financial records and go through the last 2-3 yrs yourself to see what the HOA money is being spent on to verify it all makes sense or find evidence of waste/embezzling/corruption that can be brought to the HOA.
CarolR11


Posts:0


06/19/2013 10:53 AM  
Out, federal, state laws can and do supersede HOA docs.
CarolR11


Posts:0


06/19/2013 11:19 AM  
Didn't mean to send my last post. Sorry!

But, I Iike both Ellie's and Wayne's approaches.
EricH8


Posts:0


06/19/2013 2:10 PM  
Posted By MelissaP1 on 06/17/2013 4:13 PM
Suing your HOA is suing yourself and your neighbors

Tell that to the homeowners association that sues itself (by suing its homeowners) several times per year.
JonD1


Posts:0


06/19/2013 2:44 PM  
Posted By OutC on 06/19/2013 10:06 AM
Jon
Is a marriage license issued in 1939 outdated? Or a land title? This is not about revenge...the entire community has been “wronged.” Of course a lawyer will MAKE it more complicated, but a cap on assessments is clearly a simple issue. Protection under our bylaws and state law is not afforded Board members who are guilty of “willful neglect” which is what they are doing when outright ignoring the CC&R. Have already stated the other option(s): follow the document or terminate and start a voluntary—also a very real possibility that the judge could declare a judicial dissolution, allowed by state law.

Jon D
Of course I am familiar with the budget. Services have been added that are now duplicated by the City. I am not charging anyone with with misappropriation of funds, although they have acted in “willful neglect” by not following the CC&R. Mine is only one case, not a class action suit. If others decide to follow my lead, then the Board may have a problem. What I am asking is not “whatever I decide” as you state.

OUT:

I will address only your comments directed to me although I beleive others have made some valid points.

The entire community that you suggest has been wronged IS the HOA and your own neighbors including the past, present and future members of the Board who too paid these dues or assessments that you now dispute. Because it was required to cover the costs of doing business

It is NOT the HOA versus the community! Hell if you were to win who do you think would cover the cost of repaying any dues paid in excess of what was allowed???? YOU and your neighbors. You and your neighbors will pay back yourself. Not there's a plan. Sue yourself, win, and pay the settlement.

Do you plan to dig up and hang the Board members from 75 years ago who raised the dues to cover the costs of running the property? And you suggestion the Board operate under the 1939 budget are you serious?

So you claim no MISUSE of funds by the Board but you still believe they had no right to collect what was needed to operate the property because documents written in 1939 estimated the toal cost of running the property for a year was $2.39. And according to you that was what should now take place.

Our By-Laws require owners be notified by "Western Union" they were written in 1982. We do not send out Western Union notices hence in your world we are guilty of "willful neglect". Right? And you beleive a Small Claims Court would do what to make the owners who demand Western Unio notification whole?

You seriously believe a Small Claims court judge can or will rule to dissolve the HOA? Do you have any knowledge of that ever happening or would yours be the first case?

Just have to wonder Out how long have you owned on this property. And what amount of damages have you estimated it might take to cover your overcharge.

How many units do you have? So IF you were to prevail the possible total cost to the property owners, you being one fo them would be ______????

"If others decide to follow my lead, then the Board may have a problem."

Do you not get "the Board" is in fact your fellow owners and neighbors?
Or have you broken off from the rest of the community?

My guess you will have a tough time collecting back dues from 75 years ago and paying it back to owners who no longer own, collecting from former Board members who are either dead or gone, and now righting a wrong that seems only has you as a claiment of being damaged by a breach of contract.

I would hope you update us as to how this settles out. My guess even if you do prevail it will not be the Board that has a problem but rather your own community. And the cost will be paid at least in part by YOU.

By your estimations over _____ number of years, you have been overcharged ________.

Have you owned since '39??????

Makes now sense that people collected money, spent it on YOUR property to cover costs, and now you wish o force them to repay YOU back with your own money or that of your neighbors......

That certainly is not complicated.

So far you have cost your neighbors $5,000. And you will pay part of that.






MelissaP1
(Alabama)

Posts:10521


06/19/2013 3:46 PM  
Is it not the members that can change and amend the rules/CC&R's themselves? It is NOT the board's responsibility to change/amend the rules. It takes a majority vote of the ENTIRE HOA to adapt/change. The HOA board simply approves to pay for those changes to be drafted and paid for by the lawyer to file/write.

You need to read your rules and see the power to change is in your hands. It's not in the boards. The board just represent you all as a whole. So if you want to change a rule then you may need a special meeting and up to 90% of the owners to approve that change.

It gets me everytime how people think they should go to a third party source like a lawyer/court when all the power they need is in their documents to change. A HOA is only managed by it's members for it's members. Which means besides obeying local, state, and federal laws can create whatever rules they want to live by.

By the way, our HOA the city owned the streets, street lighting, street signs, and we had city water. A lot of things that would be considered duplicate resources. However, we paid for things like HOA insurance, lawncare, clubhouse, pool care, and garbage dumpsters. The city has these options too, does it mean we should stop paying? No cause we had to take care of our own.

Former HOA President
SharonH9


Posts:0


06/19/2013 5:26 PM  
Posted By OutC on 06/19/2013 10:06 AM
Jon


I have tried to address all of your concerns in the above paragraphs. I do hope someone will address my question about whether the main proof required in a SCCt is whether a contract exists. ,




Out,
I can only offer you what I know from personal experience having been sued by my Association. My personal attorney said that HOA cases are contract cases. I have also researched these types of cases in Iowa that began in small claims court but were appealed to the Iowa Court of Appeals and the Iowa Supreme Court. I also personally spoke to an attorney at the Iowa Attorney General's Office. He said these cases are contract cases. My opinion is that you may argue your point as a contract case unless you know of a different legal theory that you may argue which may be a different court than small claims court. You must show the elements of the contract and there has been a breach of that contract and what your damages are. This of course is in Iowa and I am not a lawyer or work in the profession.

I just have to ask, do you have common elements in the development that must be maintained? If not, why is the HoA collecting dues and assessments. If you have no common elements to maintain, I would think that dissolving the HoA to be a viable option.
OutC
(Missouri)

Posts:21


06/19/2013 10:04 PM  
Thank you, SharonH9, for finally addressing my question. That is what I thought. I have tried in vain for the past 4 years to get anyone on the Board to listen to me. At first they denied the existence of the governing document. Then "maybe" we had one but it was too old ("dusty") to be of any value. Now that it can no longer be swept under the rug, their lawyer tells them that as long as 3/4 members are willing to keep paying what the Board was charging, they should just keep "working around the kitchen table." (wink, wink!) I figured the only way I could prove a case against them was to 1) pay what the CC&R said, 2) make them declare me delinquent, 3) pay the difference of what they demanded, and 4) claim that back in SCCt. That led to my thinking that I might as well go back to each year since I've lived here. I have no idea if the judge will agree, but if he rules that my CONTRACT (i.e., deed to my home which mentions the document on file in the county courthouse) is valid, there can be no dispute that it has been breached by Boards who have overcharged me. Not being a class-action suit, others will have to fend for themselves if they so choose, although I believe there is a good case to be made for this as a class-action suit.

You also hit the nail on the head that there are no longer any "common elements" to maintain. That is why I have mentioned dissolution, provisions allowed in the document. Although some on here prefer to "take care of their own" it is duplicitous when my taxes do the same jobs, and better. Sharon, if there is a way to contact me outside this forum, I would like to hear more of your case.

MelissaP, you make a valid point that the Association is comprised of the members, whose Boards serve at their pleasure. However, I know that many of those 3/4 I mention above, having gotten used to the fees, just write the check and put a stamp on it like little robots, others do it out of fear of a lien on their homes, and of the last 1/4 who are non-payers, the Board has never put a lien on and won't because they will have to "prove" their inflated fees and they know they can't. So we are at a stalemate, which I hope to break.

Although implied by some, I have never said I was not pro-HOA. What I am, however, is pro-document. I ran for office twice and got elected both times on the platform of "change/amend the documents if you don't like what they say, but don't keep making up rules by adding services, as you go." But I was a minority on a Board of recycled directors who had over 250 collective years of community residence and over 30 years Board service.

I know it seems a stretch to those who have disagreed with my lawsuit, to believe that there CAN be bad Boards who take advantage of their members when they follow only the rules that they want and flagrantly disregard the ones they don't like. I mentioned 3% who attend our 2 meetings per year as the ones who are making/allowing the decisions for all. I was one of the complacent "all" for years, but now I am going to claim my rights as a member in whatever manner it takes. To naysayers who say the judge may call a phrase a "typo" that's not going to fly. The developer who drew up our CC&Rs was a highly respected community member and businessman whose attorneys didn't make "typos".

The most insightful admonition was from TimB4 when he said "Please remember, what may be common knowledge to you is not common knowledge to us." That some things are not "common knowledge" to those of you drawing conclusions about how much my assessments have been or should be, how long I have lived in this HOA, or how much I am asking for damages, is really not germane to the question I have been waiting on to be answered. And I don't believe any of you really want to read through a Charter and a Bylaws, consisting of 8 single-spaced pages each so that you can know the "exact" language.

What you have all provided for me is opportunity to see the tactics the HOA attorney is likely to use, so that I can better prepare my case. And yes, very possibly represented by a fool. I may not know all the legal tomfoolery (technicalities) that he is likely to use, but at least I am confident that this fool knows more about my HOA than the attorney being paid to represent the HOA.
MelissaP1
(Alabama)

Posts:10521


06/19/2013 11:35 PM  
All I have to say is enjoy suing yourself and your neighbors... I am sure you will make more friends that way and all for some ridiculous amount of money you just don't want to pay. Seems someone isn't into their fair sharing and getting the concept of you all in this together and pay for things together. A HOA can increase or set dues for whatever amount they need to make their bills as long as it done equally among all the owners. There is also the factor that those that do pay sometimes have to pay more due to all those who don't contribute... Now in your case your going to make everyone pay more just so they can afford the attorney and if you do win, a special assessment fee... Wow... Hope it is worth it instead of following the rules and making those changes by having those member behind you than against you.

Former HOA President
JonD1


Posts:0


06/20/2013 5:20 AM  
Posted By OutC on 06/19/2013 10:04 PM
Thank you, SharonH9, for finally addressing my question. That is what I thought. I have tried in vain for the past 4 years to get anyone on the Board to listen to me. At first they denied the existence of the governing document. Then "maybe" we had one but it was too old ("dusty") to be of any value. Now that it can no longer be swept under the rug, their lawyer tells them that as long as 3/4 members are willing to keep paying what the Board was charging, they should just keep "working around the kitchen table." (wink, wink!) I figured the only way I could prove a case against them was to 1) pay what the CC&R said, 2) make them declare me delinquent, 3) pay the difference of what they demanded, and 4) claim that back in SCCt. That led to my thinking that I might as well go back to each year since I've lived here. I have no idea if the judge will agree, but if he rules that my CONTRACT (i.e., deed to my home which mentions the document on file in the county courthouse) is valid, there can be no dispute that it has been breached by Boards who have overcharged me. Not being a class-action suit, others will have to fend for themselves if they so choose, although I believe there is a good case to be made for this as a class-action suit.

You also hit the nail on the head that there are no longer any "common elements" to maintain. That is why I have mentioned dissolution, provisions allowed in the document. Although some on here prefer to "take care of their own" it is duplicitous when my taxes do the same jobs, and better. Sharon, if there is a way to contact me outside this forum, I would like to hear more of your case.

MelissaP, you make a valid point that the Association is comprised of the members, whose Boards serve at their pleasure. However, I know that many of those 3/4 I mention above, having gotten used to the fees, just write the check and put a stamp on it like little robots, others do it out of fear of a lien on their homes, and of the last 1/4 who are non-payers, the Board has never put a lien on and won't because they will have to "prove" their inflated fees and they know they can't. So we are at a stalemate, which I hope to break.

Although implied by some, I have never said I was not pro-HOA. What I am, however, is pro-document. I ran for office twice and got elected both times on the platform of "change/amend the documents if you don't like what they say, but don't keep making up rules by adding services, as you go." But I was a minority on a Board of recycled directors who had over 250 collective years of community residence and over 30 years Board service.

I know it seems a stretch to those who have disagreed with my lawsuit, to believe that there CAN be bad Boards who take advantage of their members when they follow only the rules that they want and flagrantly disregard the ones they don't like. I mentioned 3% who attend our 2 meetings per year as the ones who are making/allowing the decisions for all. I was one of the complacent "all" for years, but now I am going to claim my rights as a member in whatever manner it takes. To naysayers who say the judge may call a phrase a "typo" that's not going to fly. The developer who drew up our CC&Rs was a highly respected community member and businessman whose attorneys didn't make "typos".

The most insightful admonition was from TimB4 when he said "Please remember, what may be common knowledge to you is not common knowledge to us." That some things are not "common knowledge" to those of you drawing conclusions about how much my assessments have been or should be, how long I have lived in this HOA, or how much I am asking for damages, is really not germane to the question I have been waiting on to be answered. And I don't believe any of you really want to read through a Charter and a Bylaws, consisting of 8 single-spaced pages each so that you can know the "exact" language.

What you have all provided for me is opportunity to see the tactics the HOA attorney is likely to use, so that I can better prepare my case. And yes, very possibly represented by a fool. I may not know all the legal tomfoolery (technicalities) that he is likely to use, but at least I am confident that this fool knows more about my HOA than the attorney being paid to represent the HOA.





So then OUT seems you have it all figured out. Then what do you need from us? For us to agree with what you are doing and how you are going about it? Sorry I don't see it your way.

I find it amazing you see support from Sharon. Sharon who details some cases going from SCC to Superior Court and then onto Iowa Supreme court.
Do you have any idea of the timeframe involved with such a case? Do you have any idea the COST of following up that case? And here you sit without a lawyer. Like going into a knife fight without a knife.

And YES some of the questions asked of you are in fact germane but you would rather not provide that information for some reason. I get funny feelings when people like to give THEIR information and decide what parts should be told and what parts should be left out. How long you have lived there, how much you have paid and how much you feel robbed of is part of the story. Just how long did you sit back and see, hear, speak nothing? Oh that's right no one needs to know that.

And finally OUT confidence is a wonderful thing but you don't win cases in court be showing just how much you know about your HOA. That is not what is in question who knows more. It's about the law. What the law says, what the law allows, and whether you or the HOA is standing on solid legal grounds or not.

None of us here are lawyers so for you to think we now show you how a lawyer might approach this matter is flawed self serving thinking. Better to consider worst case senario rather than "I can't lose".





SharonH9


Posts:0


06/20/2013 5:28 AM  
Posted By OutC on 06/19/2013 10:04 PM
Sharon, if there is a way to contact me outside this forum, I would like to hear more of your case.





You can e-mail me at [email protected]
JonD1


Posts:0


06/20/2013 6:24 AM  
Posted By SharonH9 on 06/19/2013 5:26 PM
Posted By OutC on 06/19/2013 10:06 AM
Jon


I have tried to address all of your concerns in the above paragraphs. I do hope someone will address my question about whether the main proof required in a SCCt is whether a contract exists. ,




Out,
I can only offer you what I know from personal experience having been sued by my Association. My personal attorney said that HOA cases are contract cases. I have also researched these types of cases in Iowa that began in small claims court but were appealed to the Iowa Court of Appeals and the Iowa Supreme Court. I also personally spoke to an attorney at the Iowa Attorney General's Office. He said these cases are contract cases. My opinion is that you may argue your point as a contract case unless you know of a different legal theory that you may argue which may be a different court than small claims court. You must show the elements of the contract and there has been a breach of that contract and what your damages are. This of course is in Iowa and I am not a lawyer or work in the profession.

I just have to ask, do you have common elements in the development that must be maintained? If not, why is the HoA collecting dues and assessments. If you have no common elements to maintain, I would think that dissolving the HoA to be a viable option.





Sharon:

As you suggested the terms of settlement in the suit your HOA brought agains you and your husband were not deemed confidential I was curious if you cared to share on what grounds your HOA sued you?

In what court was your case heard?
How long did it take to settle?
Was there a court decision or settlement?
If so what decisiuon was rendered and in favor of who?
YOUR legal costs in the end?
The HOA's legal costs in total?
Did your case involve a breach of contract?


In the end what was accomplished by either side?

And as you now seem willing to suggest that in YOUR opinion dissolving this HOA is a viable option I was wondering just what you base that opinion on as you are not a lawyer. Have you ever been involved in dissolving an HOA? Have you yourself ever served on a property's HOA Board? Do you have any first hand knowledge of that taking place? Have you read OUT's property's documents? Other than OUT do you have any knowledge of what the other property owners think?

So from one non-Board member who was sued by their HOA to another non-Board member property owner who is suing their HOA you feel in your non-lawyer opinion dissolving this HOA is a viable option???


SharonH9


Posts:0


06/20/2013 7:04 AM  
As you suggested the terms of settlement in the suit your HOA brought agains you and your husband were not deemed confidential I was curious if you cared to share on what grounds your HOA sued you?

Jon, that is not what I said. The terms of the settlement are confidential (price) not the litigation details.

In what court was your case heard?
I do not wish to disclose my specific location except to tell you I was sued in Iowa District Court not small claims.

How long did it take to settle? 3 years because the association kept purposefully delaying the process and filing motions that they lost of course.

Was there a court decision or settlement? What do you think settlement means?

If so what decisiuon was rendered and in favor of who? No winners or losers. It didn't go to court.

YOUR legal costs in the end? Thousands

The HOA's legal costs in total? Thousands

Did your case involve a breach of contract?
Yes


In the end what was accomplished by either side? Nothing. Remember they sued me. I didn't sue them. We tried and tried to come to a reasonable compromise but they would not budge until 3 days before court.

And as you now seem willing to suggest that in YOUR opinion dissolving this HOA is a viable option I was wondering just what you base that opinion on as you are not a lawyer. If there are no common elements to maintain what is the purpose of the HOA?


Have you ever been involved in dissolving an HOA? Have you?

Have you yourself ever served on a property's HOA Board? I'm trying.

Do you have any first hand knowledge of that taking place? No. Do you?

Have you read OUT's property's documents? No. I haven't read yours either and dozens of others that post on this site.

Other than OUT do you have any knowledge of what the other property owners think? No, do you?

I'm just giving an opinion as you are. You don't have to agree with me and I don't have to agree with you. That is the way it is on a forum such as this. We post issues, we get responses. Some of the responses I agree with some I don't. Same as you.

So from one non-Board member who was sued by their HOA to another non-Board member property owner who is suing their HOA you feel in your non-lawyer opinion dissolving this HOA is a viable option???
I have seen numerous posts on this forum that the purpose of an HOA is to maintain the comment elements. Out stated that there are none. What is the point then? If the CC&R's run with the land, then it would be up to property owners to sue each other for those violations. I have seen that posted here a number of times. What is the money for?
JonD1


Posts:0


06/20/2013 8:12 AM  
Posted By SharonH9 on 06/20/2013 7:04 AM
As you suggested the terms of settlement in the suit your HOA brought agains you and your husband were not deemed confidential I was curious if you cared to share on what grounds your HOA sued you?

Jon, that is not what I said. The terms of the settlement are confidential (price) not the litigation details.

In what court was your case heard?
I do not wish to disclose my specific location except to tell you I was sued in Iowa District Court not small claims.

How long did it take to settle? 3 years because the association kept purposefully delaying the process and filing motions that they lost of course.

Was there a court decision or settlement? What do you think settlement means?

If so what decisiuon was rendered and in favor of who? No winners or losers. It didn't go to court.

YOUR legal costs in the end? Thousands

The HOA's legal costs in total? Thousands

Did your case involve a breach of contract?
Yes


In the end what was accomplished by either side? Nothing. Remember they sued me. I didn't sue them. We tried and tried to come to a reasonable compromise but they would not budge until 3 days before court.

And as you now seem willing to suggest that in YOUR opinion dissolving this HOA is a viable option I was wondering just what you base that opinion on as you are not a lawyer. If there are no common elements to maintain what is the purpose of the HOA?


Have you ever been involved in dissolving an HOA? Have you?

Have you yourself ever served on a property's HOA Board? I'm trying.

Do you have any first hand knowledge of that taking place? No. Do you?

Have you read OUT's property's documents? No. I haven't read yours either and dozens of others that post on this site.

Other than OUT do you have any knowledge of what the other property owners think? No, do you?

I'm just giving an opinion as you are. You don't have to agree with me and I don't have to agree with you. That is the way it is on a forum such as this. We post issues, we get responses. Some of the responses I agree with some I don't. Same as you.

So from one non-Board member who was sued by their HOA to another non-Board member property owner who is suing their HOA you feel in your non-lawyer opinion dissolving this HOA is a viable option???
I have seen numerous posts on this forum that the purpose of an HOA is to maintain the comment elements. Out stated that there are none. What is the point then? If the CC&R's run with the land, then it would be up to property owners to sue each other for those violations. I have seen that posted here a number of times. What is the money for?




Sharon:

I appreciate you taking the time to answer some of my questions. And of course I understand you not wishing to disclose your location. But IMO why you were sued which you chose to not answer would be important. Tough for me to understand why an HOA would get to the point they might bring legal action unless they had no other option. And you also answer as to the outcome that "it did not go to court". Again, to vague to judge in any way what took place. Did both parties agree to drop the matter? If so sounds like a lose-lose for both sides.

You see I have served on our Board for 26 years. During those years we have been sued 4 times. Not once has the party that brought the action against us won. BUT, as in your case the property paid a price. That makes little sense to me. I have yet to hear or read about a case where a suit was successful in regards to breach of contract reagrding an HOA and IF there are any there are not a large amount.

In fact one former visitor here had it all figured out. With a $250 online legal degree he filed sui against his property for "breach of contract" the court ruled against him. But he has since appealed. Just like OUT it was cut and dry until his matter got to court and then reality set in. And this man also decided he too was capable of handling his own legal representation. Sound familiar????

So from the answers you provided and from that which you left out impossible for me to have an opinion as to why he HOA sued you, was it necessary, what outcome was reached, for what reasons, and whether or not it served any useful purpose.

Now on to your suggestion OUT had a viable option in dissolving his HOA.
My question to you was just what did you base that claim on?

From your response it would appear not much. No I have never handled or particiapted in the dissolving of an HOA. Nor have I heard about any actually being done. Nor have I read about this as a frequent occurence.
So is it POSSIBLE??? Probably YES. Is it viable? Considering the hurdles and requirements in all cases including OUT's my opinion not even close.

But then again I was not the person who suggested it was in fact an option. That was you.

So no Sharon I don't live my life with the need to agree with you or anyone else. We can disagree and both of our lives go on. However, when you make a statement such as in this case that YOUR opinion is dissolving this particular HOA is in fact an option and a "viable option" I just have to wonder if you have ANY logical or factual basis for that opinion. Since you have never sat on a Board, never presided over the dissolving of an HOA, never actually been involved in such an action, have no first hand knowledge of this property, have no details as to the particulars of this property, have no legal expertise, I would find it difficult myself to conclude whether or not something was in fact "viable". But that's just me....

OUT seems to suggest he holds a belief that the judge in SCC can and will dissolve his HOA, can and will force the HOA to revert back to the 1939 budget, can or will order OUT be repaid any overcharges OUT now claims. My guess not going to happen. And if it does the community, including OUT's own residence will suffer. Now that IMO is NOT positive.
Another lose-lose.

And finally the sole purpose of an HOA is not simply to maintain common property. And then following your logic without common property there is no need for the HOA. That suggestion on your part suggests a lack of understanding by you as to what is involved in the management and operations of an HOA. It is simply not that cut and dry.

Just one point. What do you suppose might happen to your property values when you listed your home for sale as a "one time HOA that has now been dissolved, the owners bought into a contract for the purchase of an HOA but that property no longer exists, and those owners who were looking for services and HOA provided amenities are now on their own, the property has no regulations, guidelines, ability to collect dues or fees, cannot fund any services or amenities, and if your neighbor acts in a manner that offends you or damages your abiliy to live in your home peacefully hire a lawyer and take them to court for 3 years, foot the bill and see how that works out for you. How many current residents would wish to now stay???

Just myself I would not wish to live on our property without an HOA being in place. I know after 26 years what would occur if everyine were left up to their own devices... Not pretty.

So thanks for the response. I will then offer my opinion "dissolving this or any HOA is in most cases NOT a viable or positive option".

Just an answer to a percieved problem where the party involved hasn't bothered to think through the entire process and consider the negative consequences... But that's only MY opinion.



JohnC46
(South Carolina)

Posts:11507


06/20/2013 8:27 AM  
Posted By JonD1 on 06/20/2013 8:12 AM
Posted By SharonH9 on 06/20/2013 7:04 AM
As you suggested the terms of settlement in the suit your HOA brought agains you and your husband were not deemed confidential I was curious if you cared to share on what grounds your HOA sued you?

Jon, that is not what I said. The terms of the settlement are confidential (price) not the litigation details.

In what court was your case heard?
I do not wish to disclose my specific location except to tell you I was sued in Iowa District Court not small claims.

How long did it take to settle? 3 years because the association kept purposefully delaying the process and filing motions that they lost of course.

Was there a court decision or settlement? What do you think settlement means?

If so what decisiuon was rendered and in favor of who? No winners or losers. It didn't go to court.

YOUR legal costs in the end? Thousands

The HOA's legal costs in total? Thousands

Did your case involve a breach of contract?
Yes


In the end what was accomplished by either side? Nothing. Remember they sued me. I didn't sue them. We tried and tried to come to a reasonable compromise but they would not budge until 3 days before court.

And as you now seem willing to suggest that in YOUR opinion dissolving this HOA is a viable option I was wondering just what you base that opinion on as you are not a lawyer. If there are no common elements to maintain what is the purpose of the HOA?


Have you ever been involved in dissolving an HOA? Have you?

Have you yourself ever served on a property's HOA Board? I'm trying.

Do you have any first hand knowledge of that taking place? No. Do you?

Have you read OUT's property's documents? No. I haven't read yours either and dozens of others that post on this site.

Other than OUT do you have any knowledge of what the other property owners think? No, do you?

I'm just giving an opinion as you are. You don't have to agree with me and I don't have to agree with you. That is the way it is on a forum such as this. We post issues, we get responses. Some of the responses I agree with some I don't. Same as you.

So from one non-Board member who was sued by their HOA to another non-Board member property owner who is suing their HOA you feel in your non-lawyer opinion dissolving this HOA is a viable option???
I have seen numerous posts on this forum that the purpose of an HOA is to maintain the comment elements. Out stated that there are none. What is the point then? If the CC&R's run with the land, then it would be up to property owners to sue each other for those violations. I have seen that posted here a number of times. What is the money for?




Sharon:

I appreciate you taking the time to answer some of my questions. And of course I understand you not wishing to disclose your location. But IMO why you were sued which you chose to not answer would be important. Tough for me to understand why an HOA would get to the point they might bring legal action unless they had no other option. And you also answer as to the outcome that "it did not go to court". Again, to vague to judge in any way what took place. Did both parties agree to drop the matter? If so sounds like a lose-lose for both sides.

You see I have served on our Board for 26 years. During those years we have been sued 4 times. Not once has the party that brought the action against us won. BUT, as in your case the property paid a price. That makes little sense to me. I have yet to hear or read about a case where a suit was successful in regards to breach of contract reagrding an HOA and IF there are any there are not a large amount.

In fact one former visitor here had it all figured out. With a $250 online legal degree he filed sui against his property for "breach of contract" the court ruled against him. But he has since appealed. Just like OUT it was cut and dry until his matter got to court and then reality set in. And this man also decided he too was capable of handling his own legal representation. Sound familiar????

So from the answers you provided and from that which you left out impossible for me to have an opinion as to why he HOA sued you, was it necessary, what outcome was reached, for what reasons, and whether or not it served any useful purpose.

Now on to your suggestion OUT had a viable option in dissolving his HOA.
My question to you was just what did you base that claim on?

From your response it would appear not much. No I have never handled or particiapted in the dissolving of an HOA. Nor have I heard about any actually being done. Nor have I read about this as a frequent occurence.
So is it POSSIBLE??? Probably YES. Is it viable? Considering the hurdles and requirements in all cases including OUT's my opinion not even close.

But then again I was not the person who suggested it was in fact an option. That was you.

So no Sharon I don't live my life with the need to agree with you or anyone else. We can disagree and both of our lives go on. However, when you make a statement such as in this case that YOUR opinion is dissolving this particular HOA is in fact an option and a "viable option" I just have to wonder if you have ANY logical or factual basis for that opinion. Since you have never sat on a Board, never presided over the dissolving of an HOA, never actually been involved in such an action, have no first hand knowledge of this property, have no details as to the particulars of this property, have no legal expertise, I would find it difficult myself to conclude whether or not something was in fact "viable". But that's just me....

OUT seems to suggest he holds a belief that the judge in SCC can and will dissolve his HOA, can and will force the HOA to revert back to the 1939 budget, can or will order OUT be repaid any overcharges OUT now claims. My guess not going to happen. And if it does the community, including OUT's own residence will suffer. Now that IMO is NOT positive.
Another lose-lose.

And finally the sole purpose of an HOA is not simply to maintain common property. And then following your logic without common property there is no need for the HOA. That suggestion on your part suggests a lack of understanding by you as to what is involved in the management and operations of an HOA. It is simply not that cut and dry.

Just one point. What do you suppose might happen to your property values when you listed your home for sale as a "one time HOA that has now been dissolved, the owners bought into a contract for the purchase of an HOA but that property no longer exists, and those owners who were looking for services and HOA provided amenities are now on their own, the property has no regulations, guidelines, ability to collect dues or fees, cannot fund any services or amenities, and if your neighbor acts in a manner that offends you or damages your abiliy to live in your home peacefully hire a lawyer and take them to court for 3 years, foot the bill and see how that works out for you. How many current residents would wish to now stay???

Just myself I would not wish to live on our property without an HOA being in place. I know after 26 years what would occur if everyine were left up to their own devices... Not pretty.

So thanks for the response. I will then offer my opinion "dissolving this or any HOA is in most cases NOT a viable or positive option".

Just an answer to a percieved problem where the party involved hasn't bothered to think through the entire process and consider the negative consequences... But that's only MY opinion.







Well said.
GlenL
(Ohio)

Posts:5491


06/20/2013 11:13 AM  
Out one other thing you need to take into consideration because the courts do. What was the INTENT of the document when it was enacted, you say the assessment was capped at X and is nonamendable. I'll take your word for it since you don't want to share but if the yearly assessment was capped at say $25.00 in 1939 then factoring in inflation and devaluing of the dollar in 2013 that would equal $410. (One 1939 dollar = $16.40 2013 dollars.) That would be the argument I would use if I were defending against your lawsuit.

Studies show that 5 out of 4 people have problems with fractions
JonD1


Posts:0


06/20/2013 12:15 PM  
Posted By GlenL on 06/20/2013 11:13 AM
Out one other thing you need to take into consideration because the courts do. What was the INTENT of the document when it was enacted, you say the assessment was capped at X and is nonamendable. I'll take your word for it since you don't want to share but if the yearly assessment was capped at say $25.00 in 1939 then factoring in inflation and devaluing of the dollar in 2013 that would equal $410. (One 1939 dollar = $16.40 2013 dollars.) That would be the argument I would use if I were defending against your lawsuit.





Glen I would seem quite clear to me Out wishes to present this entire matter so that his view is clearly rational and foolproof.

His damages he would rather not discuss because HE decided that was not relevant information however in Small Claims Court there is a cap of several housand dollars.

I had menioned there is a doctrine in the law of meaning versus letter and as you suggested the court might take the view that the 1939 documents simply could not be followed and the property still function. And that the Board did what was in fact necessary and prudent. And under the business judgement doctrine their actions were in fact proper.

Another argument is that the increase in dues over the years did have the tacit approval of the membership simply by the fact they paid this increased amount. Just how long did OUT live on the property and pay these increases before this now became an issue. Oh that's right Out has determined no one needs to know that.

Court is a funny place many times what you think is cut and dry is no where near what you end up with. And many times NEITHER side walks away happy or satisfied.

Out with his limited understanding of SCC has determined just how simple this process is. I have to wonder why then some folks study for years o earn a law degree if people like Out can master this area with no understanding what so ever. Or just that whcih has been picked up on internet web sites.

I doubt the HOA lawyer will simply ask whom to write the check to...
SharonH9


Posts:0


06/20/2013 12:22 PM  
Okay Jon, you have educated me that HOA's have another purpose besides maintaining common elements and that is maintaining property values. That is the reason I enjoy this site (most of the time) to become educated in the ins and outs of HOA's so that if I ever do get on the Board of Directors I have some knowledge to bring to the table. And yes, people can gain knowledge from reading and applying as well as hands on experience.

My question is this then, if there are no common elements to maintain but you want to maintain property values what is the purpose of collecting dues and assessments? What do these HOA's do with the money that is collected? Please educate me more. I appreciate the knowledge I gain from you and others on this site.

I made the statement that dissolution is a valid option because others on this site have said the purpose of an HOA is to maintain the common elements and others have said that the BOD does not have the responsibility to enforce the covenants. They can but it can also be up to the homeowner to sue their fellow neighbors who have violated those covenants. Please correct me if I have misinterpreted that and then I will send my apologies to Out for making that suggestion.

I can only speak from my own knowledge (or perceived knowledge)and personal experience. In my association the property values will not be greatly affected by having an HOA whose main purpose is to protect my property values. I live in the Midwest, in a development of single family homes in rural Iowa. I have never lived in an urban area or condo or in any town larger than 23,000 people. Swimming pools, tennis courts, club houses, golf courses, amenities like that are not the norm where I live or have ever lived.

Your experience with an HOA is different than mine. There are many variables. The people that come to this site can provide information based on what is applicable to them depending on where they live and what the purpose of their HOA is.

I am eager to gain some more information from you all. Thanks.
JohnC46
(South Carolina)

Posts:11507


06/20/2013 2:48 PM  
Sharon

I believe the trouble some (I am one) are having with OUT is he does not seem to present all facts nor answer all questions. He tries to slant his presentation/view of information to make it easy for all to agree with him.

The old do you still beat your wife type of questions.

Is the glass half full or half empty is interesting in College Class 101. It sends many naive freshman into heavy conversation which is best assisted by drugs, booze, sex or all. Which is what it should do. It is all part of learning experience.

Back to the sex...but wait...I digress

By the time you get into real life, you best know how to answer the question by turning it back on the asker and asking will my job be to fill or empty the glass.....LOL



JonD1


Posts:0


06/20/2013 3:40 PM  
Posted By SharonH9 on 06/20/2013 12:22 PM
Okay Jon, you have educated me that HOA's have another purpose besides maintaining common elements and that is maintaining property values. That is the reason I enjoy this site (most of the time) to become educated in the ins and outs of HOA's so that if I ever do get on the Board of Directors I have some knowledge to bring to the table. And yes, people can gain knowledge from reading and applying as well as hands on experience.

My question is this then, if there are no common elements to maintain but you want to maintain property values what is the purpose of collecting dues and assessments? What do these HOA's do with the money that is collected? Please educate me more. I appreciate the knowledge I gain from you and others on this site.

I made the statement that dissolution is a valid option because others on this site have said the purpose of an HOA is to maintain the common elements and others have said that the BOD does not have the responsibility to enforce the covenants. They can but it can also be up to the homeowner to sue their fellow neighbors who have violated those covenants. Please correct me if I have misinterpreted that and then I will send my apologies to Out for making that suggestion.

I can only speak from my own knowledge (or perceived knowledge)and personal experience. In my association the property values will not be greatly affected by having an HOA whose main purpose is to protect my property values. I live in the Midwest, in a development of single family homes in rural Iowa. I have never lived in an urban area or condo or in any town larger than 23,000 people. Swimming pools, tennis courts, club houses, golf courses, amenities like that are not the norm where I live or have ever lived.

Your experience with an HOA is different than mine. There are many variables. The people that come to this site can provide information based on what is applicable to them depending on where they live and what the purpose of their HOA is.

I am eager to gain some more information from you all. Thanks.





Well Sharon to answer all your questions due to my limited typing skills more than likely my fingers would be worn down to the knuckles before I got out all I would wish to say.

But lets take a swing at this. MY general rule in serving our property when faced with a decision or choice is simply "What is best for the property?" Simple, short and easy to answer. Under those guidelines I can see Out's actions as negative or selfserving. Hence my opinions as to why I would oppose HIS course of action. And to seek, force, or support any effort to dissolve this particular HOA would in my opinion be a serious error. In Out's mind perhaps a simple remedy just not one they may ever occur. And IF it does the entire property would suffer.

Now as to HOAs. HOAs are simply a form of property ownership. HOAs, Condos, Co-Ops offer in some cases benefits to owners or members they they may not have had with private ownership of property. I nsome cases it might limit costs, and expenses. Some people prefer private ownership others might have reasons to buy into an HOA. Some, not all offer amenities, services, maintenance, water/sewer, landscaping, snow removal, or as you listed golf courses and waterparks.
Have you reviewed the budget of YOUR property? Is there an MC? Does the property carry insurance? Is there any common property? Lawns, lakes, ponds, recreation facilities at all? My suggestion get a hold of you P&L or audit and go over the property's finances. Where does the money come in from and what is is going towards? Do you have private roads? Does the city, county or state maintain your roads within the community?
Most HOAs operate under a budget to cover the costs of operations. Those costs are split equally among the owners to cover them. As many people forget the HOA Board is made up of OWNERS just like them not some evil visitors from another planet far far away. The HOA Board also pays these same costs. Why would they act in a way to do harm to themselves?

That is why before I would suggest dissolving Out's HOA I would need to know the details of what is in fact included in those operations. Out claims the police, fire and mail services are now all covered by others, my guess the US mail has been around even longer than Out's property so I would doubt the mail service was ever covered by the HOA. Hence I have to conclude Out knows little about his own property's operations. Better to educate yourself and speak from facts rather than making no sesne at all.

As a general life rule Sharon I do not take what others say as Gospel. I prefer to find out for myself and in the situations where in fact I don't begin to know I sit back listen and let someone who has a clue talk. Many folks who hold the belief HOAs only maintain common property have never sat on an HOA Board. Don't attend meetings, and bought into a property which they have no understanding of. But rather than educating themselves they attempt to simplify the role HOAs have in the operations of their own communities and then suggest they play no useful role. Then waht was the reson you bought into one?

I am past the 1/2 point of my lifecycle. I understand by now knowledge is something you acquire not something you are born with. But I do not allow myself to take the shortcut of assuming someone else's opinion as my own without first understanding why what they think makes sense or in some cases makes no sense at all. HOAs are a complicated, individual entities. My guess no two are alike. My serving on our Board for the past 26 years has proven to be quite an education. Finances, maintenance issues, legal issues, law, taxes, accounting, bookeeping, newsletters, pool services, snow removal, landscaping, water and sewer service, cable services, insurance, critter control, fires, floods, gas leaks and all the rest. If you actaully do the job there is a lot to learn. Before you reach the opinion your HOA really serves no useful purpose. There are folks her who have no clue what in fac is done on a day to day basis and my guess some would hold the opinion the Board here serves no purpose.

I would wonder Sharon why you and your husband bought into an HOA? Was there a pricing advantage for you? Are there not free standing private owned homes in your area? What attracted you o this particular property?

Many years ago..... I can barely remember..... I attended my first year of college in Peoria IL. Bradley University. At the same time my older brother was attending Drake University in Des Moines. Over that time I visited your state on several occasions. And yes you are correct when you stated there is a differecne as to what we have both known in our lives in regards to "normal". In those days there were a lot of corn fields in Iowa I thought we would NEVER drive out of them! Hadn't seen many of them in mid-town growing up.

So Sharon I have begun to bleed on my fingertips. Time to wrap this up. Are HOAs always a good thing? Hardly. Do all HOAs operate in a positive manner? Only a fool would claim that. Each has its good, bad, and ugly. Each has its challenges. As an owner you have two choices involve yourself or allow others to run the place for you. My choice years ago to be honest would not be my choice today. As you stated I beleive in another post "life is to short". There is a price you pay when you choose to serve as a Board member. While the majority of the community does nothing close to THEIR fair share. But if you decide to serve gather the FACTS and form your own opinions. Don't gather opinions of others and let them form you.

Serving in the end is not all it is cracked up to be. Contrary to what some (who never have served) suggest it does not feed ones ego, or satisfies some need for power in my case my motivation was to maintain and improve MY home. And protect it from harm or damage. I myself am not the type of person who can sit back and watch people run my home and property into the ground and turn a blind eye or muster up only a whine or a whimper. So people do that very well....

So Sharon before I require a blood transfusion I have to go. Best Wishes to you, your husband, family? and community. Do they still grow a lot of corn out there or have they switched to some other crop???? Long, long time ago.....driving on the roads of Iowa.

MelissaP1
(Alabama)

Posts:10521


06/20/2013 5:19 PM  
A HOA board IS responsible for making sure the owner's/members follow the rules of the CC&R's/by-laws. It is their duty. Some may have their property manager do it but it is the board's responsibility. Some have Archectual control boards that enforce the uniformity and façade issues. However, even the board can have final say on that. The board may do the enforcing in a few different ways. Some boards can adopt a "fining schedule" that says "X violation = $X". A HOA usually does have the right to fine but they lack the definition of what for. That is why you need to establish a fine schedule and make sure it is understood by all.

Another way a board can enforce rules without fines is a bit expensive but legal. Many states do not allow fines to be the basis of liens or foreclosures. ONLY unpaid dues/late fees/interest/legal costs can be liened/foreclosure basis. Fines work like speeding tickets and are not defined as "income" like dues are. That is why this method can be used. A HOA can fix a violation at their cost and send the owner the bill. If that owner does not pay that bill, then they can lien the owner for that amount. This can be very expensive and time consuming. The owner has to be given proper notice to fix the violation and be aware the HOA can choose the highest bidder to do the job.

It is NEVER a good idea for a HOA to sue an owner nor the owners to sue other owners. Suing your HOA is suing yourself and your neighbors no matter how you slice it. Does that mean one should never sue? No. It just means you need to be aware of the costs involved. It is better a HOA countersues than brings a lawsuit. Saves them money and you all. A court can only make you "WHOLE" and decides who is responsible for paying the court/legal costs. Most of the time it's the own parties responsible. The court views the defendant would not have to had legal costs when the case is completely out of line. So the court can make the person bringing the suit responsible for all the costs.

As for "Keeping home values"... That is up for debate. A HOA does NOT keep up home values. Home values are based on real numbers. They are based on what similar houses sale or are foreclosed on in a few mile radius. The HOA's purpose is to keep up with the ATTRACTIVENESS of the property. Meaning someone would most likely pay more money or even make a purchase over other property because your HOA offers a pool. They may buy because of how the area is kept. House buying is subjective. I've not bought a house because I hated the wallpaper. Does that mean that house lost it's home value because of it? No. It just lost a potential buyer.

I hope I cleared up a few things here. It's not a good idea to sue your HOA unless you have a large group behind you. Even then it doesn't make sense as majority rules and you all could change the rule with that kind of vote anyways. Atleast you can kick out a board if you have a majority. Still have to have someone available to fill in those positions.

Former HOA President
SharonH9


Posts:0


06/20/2013 5:29 PM  
Here is the basics of why my association sued me. Sorry for the length but it was a complicated issue.

1. The only common elements in my development are the sanitary sewer and 2 ponds. The roads are county, the water is a regional company, and the electric is a co-op.
2. When we bought our property we were attracted to the location in rural Iowa. My husband is a big fan of the great outdoors. He loves to fish and birdwatch. We chose the property because there is a big lake right down the road and a wildlife refuge practically in our backyard.
3. We bought the property through a local real estate agent. He gave us a copy of the deed restrictions for the area. All that the document included were architectural detail restrictions such as size of house, no mobile homes, siding requirements, that lots must be mowed, etc. Our agent verbally stated that the development has a common sanitary sewer so we would not have to go to the expense of installing a septic tank.
4. If you could see our development its very obvious that the deed restrictions are not enforced. Some of the homes are very attractive, have attractive lawns, and keep their properties well maintained. Others have mismatched siding, homes that look like used car lots, dogs are running loose, unimproved lots haven't been mowed in years. We chose a lot that sits off by itself. There are no other homes very close to ours and our section of the neighborhood is kept pretty attractive. Our conclusion was that the deed restrictions were not enforced but like I said we didn't really care because our property is kind of off by itself.
5. The day of closing on our lot we drove to the development to let someone know that we would be building a house sometime in the near future. At that time, we had a house to sell in a different state so we did not know when we would begin to build. We knocked on some doors and were given the name of a board member and where he lived. We went to his house but he was not home so we phoned him from our hotel. He told us what the annual dues were and said that we could send the dues to him, then he would pass them on to the secretary. In the meantime we sold our house and proceeded with our plans to build the new house. A few months after speaking to the board member, we sent him the dues along with a letter stating that construction of our house would begin soon and our contractor would be contacting him to get the details of the sewer hook-up. We then received a receipt from the secretary. The receipt also stated that annual sewer users fees were $200. She didn't send us any bylaws or rules and regulations. We didn't know they even existed. Our contractor spoke to the board member and he didn't answer any of our contractors questions. He deferred everything back to the County. So construction on our house continued and on the day of the sanitary sewer hook-up, our contractor's son located the association president to ask him about the sewer hook-up. He told him a few details about the type of pipe they had to use, that they would have to dig under the road to hook on to an existing sewer line, and that the connection would need to be inspected before covering it up. The hook-up was completed, inspected, and covered up. The house was then finished and we moved in. Nine months later the association president called us up and stated that we owed the association a $5,000 hook-up fee. And the rest is history. Keep in mind no one else in the development paid this fee. It had just recently been implemented by the BOD. The rules state that there is a $5,000 hook up fee for members and $15,000 for nonmembers so of course they claimed we were nonmembers. Then there are the litigation details but I won't bore you with all that.
SharonH9


Posts:0


06/20/2013 7:00 PM  
Posted By SharonH9 on 06/20/2013 5:29 PM
Here is the basics of why my association sued me. Sorry for the length but it was a complicated issue.

1. The only common elements in my development are the sanitary sewer and 2 ponds. The roads are county, the water is a regional company, and the electric is a co-op.
2. When we bought our property we were attracted to the location in rural Iowa. My husband is a big fan of the great outdoors. He loves to fish and birdwatch. We chose the property because there is a big lake right down the road and a wildlife refuge practically in our backyard.
3. We bought the property through a local real estate agent. He gave us a copy of the deed restrictions for the area. All that the document included were architectural detail restrictions such as size of house, no mobile homes, siding requirements, that lots must be mowed, etc. Our agent verbally stated that the development has a common sanitary sewer so we would not have to go to the expense of installing a septic tank.
4. If you could see our development its very obvious that the deed restrictions are not enforced. Some of the homes are very attractive, have attractive lawns, and keep their properties well maintained. Others have mismatched siding, homes that look like used car lots, dogs are running loose, unimproved lots haven't been mowed in years. We chose a lot that sits off by itself. There are no other homes very close to ours and our section of the neighborhood is kept pretty attractive. Our conclusion was that the deed restrictions were not enforced but like I said we didn't really care because our property is kind of off by itself.
5. The day of closing on our lot we drove to the development to let someone know that we would be building a house sometime in the near future. At that time, we had a house to sell in a different state so we did not know when we would begin to build. We knocked on some doors and were given the name of a board member and where he lived. We went to his house but he was not home so we phoned him from our hotel. He told us what the annual dues were and said that we could send the dues to him, then he would pass them on to the secretary. In the meantime we sold our house and proceeded with our plans to build the new house. A few months after speaking to the board member, we sent him the dues along with a letter stating that construction of our house would begin soon and our contractor would be contacting him to get the details of the sewer hook-up. We then received a receipt from the secretary. The receipt also stated that annual sewer users fees were $200. She didn't send us any bylaws or rules and regulations. We didn't know they even existed. Our contractor spoke to the board member and he didn't answer any of our contractors questions. He deferred everything back to the County. So construction on our house continued and on the day of the sanitary sewer hook-up, our contractor's son located the association president to ask him about the sewer hook-up. He told him a few details about the type of pipe they had to use, that they would have to dig under the road to hook on to an existing sewer line, and that the connection would need to be inspected before covering it up. The hook-up was completed, inspected, and covered up. The house was then finished and we moved in. Nine months later the association president called us up and stated that we owed the association a $5,000 hook-up fee. And the rest is history. Keep in mind no one else in the development paid this fee. It had just recently been implemented by the BOD. The rules state that there is a $5,000 hook up fee for members and $15,000 for nonmembers so of course they claimed we were nonmembers. Then there are the litigation details but I won't bore you with all that.



Left out one important detail. A board member did pay $5,000 to hook up to the sewer but was reimbursed because of the line issue I spoke about in a different thread.
OutC
(Missouri)

Posts:21


06/21/2013 6:18 AM  
To everyone who has given me advice on how and why to not sue my Homes Association, let me just reiterate that I asked a question on only one topic: contract law. Having been informed that I “do not seem” to present all facts or answer questions, or of “trying to slant info to make it easy for all to agree with me”, have I asked anyone to agree with me? I was looking for an answer to my “contract” question, and so far, only Sharon has responded in kind. (Thank you to Sharon for your explanation which I hope placates the Curious.) My gut reaction, however, is that many who have weighed in on my issue may be in condo or shared communities, rather than individual, single-resident HOAs.

JonD1 has put much effort into his (and others) questioning at the expense of his abused fingertips, so I feel he is owed a response, if only in exchange for the pain. If you are not an atty, why would your (or anyone's here) confessed non-professional review of my documents matter to me; documents that you continue to insist I should provide for clarity. If I misrepresent the truth, then that is on me, but surely at least some of the “PRO-HOA-ers” out there could take what I state at face value and render a “pro-HOA” comment when I say that our CC&Rs are not being followed...especially since I clearly understand this forum to NOT be legal advice. And even more clearly, I understand my own documents which I have been told “cannot be”. You must have missed that I was voted to my Board—-twice, in fact, during which tenure I never heard any discussions or specifics of our CC&Rs, nor did even once, any director counsel to “look it up.” So you will not disparage my intelligence or intent regarding what MY documents say. I ran for the office the first time, fully prepared and knowledgeable of the CC&Rs, which, sadly, could not be said for all. I can honestly and modestly say this was the first time I have ever been part of a small group where I had educated myself to the point where I knew more than the other members. And of course, most Board meetings were chaos because no one knew or was willing to try and follow Robert's Rules of Order. Back to the issue...

Posing an excellent question of logic it was asked, “why [would] an HOA would get to the point they might bring legal action unless they had no other option.” Logic is not logical if it doesn’t work both coming and going. So, please also ruminate “why would a member get to the point of bringing legal action unless they had no other option.” Four years after my discovery—-and make no mistake, I DID have to discover it on my own, no “long-timers” stepping forth to explain what or where it could be found—-this Board, with 4 “lifers” (nearly 40 years collective experience over the past 4 decades) is no closer to agreeing the CC&R should be either followed, amended, or terminated. (Feel free to question, as I have done repeatedly, why it would not be common knowledge to all members.) Pretty clearly, that leaves me with “no other option.”

We are universes apart when you (Jon) state:
“MY [your emphasis] general rule in serving our property when faced with a decision or choice is simply, "What is best for the property?"
“But if you decide to serve, gather the FACTS and form your own opinions.”
“my motivation was to maintain and improve MY [again, your emphasis] home.

I’m sorry, but those are really crappy reasons upon which to base your decisions as a 26-yr veteran in the trenches. To your statement of it being “not that cut and dry”, you will please tell me, when DO you go to your documents to find the answer in order to make INFORMED and FACTUAL decisions rather than the subjective decision-making to which you apparently resort? Would not 5 directors have 5 opinions of "what is best"? My CC&Rs are not ambiguous, leaving no room for me to form my own opinion. If not a lose-lose what do you, as a “lifer” call it when Boards knowingly and continually violate their CC&Rs?

If you have served on your Board for 26 years, that means you have cost your association quite a few thousand dollars yourself. Dollars that you have not had to pay by reason of your special position. Are there others who have been so “dedicated” for as many years also getting (while giving)? My apologies if your Board is not exempted from paying dues as mine is, nevertheless, have you considered stepping down and letting in some new blood rather than "re-upping" merely because members continue voting for you? What percentage of community votes reelect you? Are there no term limits, or do you cycle in and out so that you disrupt the continuity, thus allowing you to return in the same/some capacity? I have found that our residents are intimidated by our long-standing and/or returning directors. Also, by not passing the torch, it creates a sense of apathy. Yet our directors cry in amazement, “Why doesn’t anyone want to be on the Board?”

I never said the judge either can, will, or should, dissolve the HOA. Merely that those were his [legal] options and responsibility, given the language of “my contract”. If a legal requirement is taken as my having said it “should” be dissolved, then so be it. However, since you state not having been involved in a dissolution in your 26 years Board experience, you will not be offended that I reject your opinion on that issue. For the record, you may go to the Missouri Secretary of State website and search “RSMo chapter 355” where, about 3/4 through the document you will find the reasons a court may apply judicial dissolution. Our HOA meets every single one! Not saying it will be done. But with continued Board resistance to following the CC&R and/or working for more Community interest, perhaps dissolution should be a strong consideration instead of continuing to bleed this community into paying for dual services simply for a few to hold onto their Power Position.

You ended stating that HOAs preserve property values. There is not one thing—not ONE—that my HOA has done to preserve my property values per our Declaration of Restrictions (another apparently unknown document). In the last 4 years, however, my city has been called in to clean up vacant (and one especially run-down) properties, plowed snow from our streets without knocking holes in our curbs or obstructing our intersections with snow unlike the private snow plow guy we hire. The city has cut down dead trees (now on their property since we no longer own or are required to maintain formerly common grounds) yet we do pay to have them mowed and insured (why? can anyone say "fiduciary duty"?), and the local police presence can respond to 9-1-1 calls faster than our sham “security” company.

I know of no one, either here or in former neighborhoods, who either bought, or rejected, a house because it did or didn’t sit in an HOA. My bets are on the buyer who fell in love with the house and because it was in the right school district. Period. My reading has shown that many homeowners who, having had negative HOA experiences with recalcitrant Board members, instruct a realtor to show them homes only if they are NOT in an HOA.
MelissaP1
(Alabama)

Posts:10521


06/21/2013 6:54 AM  
I am still trying to pick out the bits and pieces of reality that OUT is speaking of in his HOA. It's kind of a "Between the lines and the reality comes out". It seems the HOA does have some responsibilities. It does provide lawn care of certain areas. They have provided snow removal in addition to the city. They do carry an insurance policy of some sort. There apparently is some kind security detail provided. Which I may assume could be a gate guard or private guard service? It appears he would like to dissolve the HOA altogether so that they (he) would no longer be responsible for paying for these services as they seem rendundant to him. This information we are now just getting to after several long postings addressed to individuals.

Sorry but dissolving your HOA is in your documents which are PUBLIC and available at your local courthouse. Just request them at the records department. It's not like they were keeping these documents a secret from you or your neighbors. Matter of fact, they were in safe keeping and available at a public building. You may want to take a glance at them...

If you want to dissolve then read your CC&R's or Article of Incorporation. All those details again are in there and not in the judge's office. Which by the way will be reading these in court and using them as a basis of why you will lose your case. The judge will most likely say you want it dissolved follow the process in your documents.

Is dissolving a HOA the best answer? No. You may not like all the services your HOA is paying for or is providing. It doesn't mean it has no benefit to others. It doesn't have to. If you disband then will you form a neighborhood watch program for your police/security? Those programs work similar to a HOA set up. Will you pay an individual to mow that piece of land in a timely manner instead of waiting on the city to come out and do it? Is it okay that you no longer have snow removal services who may do additional work the city leaves off? Sounds like your city doesn't go to the curbs but only the street. Which probably why the additional service that makes it to your curbs so you can park your cars without being buried by the snow plows.

I find HOA's have a good benefit when you all pool your money together and share in the expense. Believer me, I live in a NON-HOA neighborhood with some shared property. It is way more expensive and the upkeep on that area is up to whoever feels like doing it cause the city can take months to get to anything.

Former HOA President
JenniferM9
(California)

Posts:42


06/21/2013 11:28 AM  
Posted By CarlA3 on 06/17/2013 12:12 PM
I am in the process of doing the same thing. My case is for selective enforcement. good luck.




Did you start a thread about this? I'm really curious to learn more about the "selective enforcement" as I feel our board is guilty of the same thing.
JonD1


Posts:0


06/21/2013 12:06 PM  
OUT:

Rather than going through your most recent post step by step I will offer you a short version of my response. Responding to your points would serve no useful purpose as you cannot allow yourself to see anything other than your own point of view. When the only voices and opinions you hear in your head are your own you have a seriopus problem. And to waste a 1/2 hour of my life I can't ever get back for no productive reason no thanks.

For someone who tells themselves SCC is simply about contracts which is in fact incorrect, you do assume lots of knowledge you clearly don't have. I would have asked to read your complaint that you filed for $10 but more than likely you could never understand the connection. Certainly would be interesting reading.

Seems anything your HOA Board does is wasteful in your eyes. I just have to wonder for someone so wise how did you end up in such a crap hole as you portray it? Guess you were asleep at the wheel before you awoke from the coma.

If as you suggest reading the CCRs is proof positive about how much you know about your property that explains to me just how limited your knowledge is. It also tells me you have a touch of annal in you.
There are things NOT covered in the CCRs of many properties what do we then do? Punt? Or perhaps think for yourself.......Dangerous territory...

And then you move on to comment about the assumptions you have made for yourself about the property I live on. My guess you know less about this property than you do your own and that is not really a whole hell of a lot. Just what do you base your comments on? Anything? Or is this just more of the little world you have created for yourself? You know the world where you are always right and no one knows more than you.

I certainly hope you share with us all how things turn out for you in court. My guess the court will not and can not dissolve the HOA. My guess your breach of contract argument won't take flight. My guess there will be no check heading your way. And if there is YOU will be paying for part of it! My guess nothing you think will happen will take place.

I won't bother to respond to your comments about the security, plowing, and lawn mowing because I don't wish encourage more of your whining.... Life is terrible, poor OUT is in a pickle and his HOA isn't following the CCRs.

And OUT just a heads up just because YOU don't know doesn't mean it might not be. Think about it.

My money is on the HOA $5,000 lawyer. Some of which is OUT's own money!



OutC
(Missouri)

Posts:21


06/21/2013 12:51 PM  
Perfect. Just perfect. Ask me questions on pending litigation, which specifics I have please asked for privacy, but let me ask a few questions regarding one's term limits, recurring directorship, or when/how those (HOA/non-HOA/conda/other) documents are followed and I can't be given another precious minute, (excuse me, half-hour), of this person's time. If it didn't sound so much like where I already live I would ask you all to please tell me where your wonderful HOAs are so I could see first-hand what a perfect-functioning association and Board looks like. Perhaps I’d even pick one in which to live out my remaining days.

But in response to Melissa, please do not taint my facts with your assumptions. What may appear as “bits of reality” were not essential to my original question. Most seem to have taken this in a whole different direction, including thinking the Association should be continuing services that are no longer reasonable since taxes now cover those services. You may get free oil changes for the first 100,000 miles with purchase of a new vehicle. Would it not then, seem “redundant” to take it to the corner Quicky-Lube where the same service would need to be paid out of your pocket? Consider those Home Owner Warranty policies. Free replacement and labor for a year. But some here seem inclined to pay for a plumber/electrician/builder out of their own pocket. Redumb-dant, to be sure.

Perhaps she fell asleep between my first post and her most recent. You will all be pleased to hear me say for the hundredth time (try getting those minutes back), that I have herein addressed the whole “courthouse” issue and (yes) “hidden,” “bastard” documents (because no Board member wants to claim them!). I have done my research 100% alone, and yes, I feel like the little red hen who did not share her bread because no one helped carry, plant, water, or thresh the wheat, or bake the bread. I will be happy to report back on how the bread tastes.

Sorry, I REALLY thought this was a pro-(for)-HOA site. From the responses I have gotten, it seems to be made up of PRO-(professional)-HOA document-evaders.
DwightT
(Idaho)

Posts:664


06/21/2013 1:28 PM  
Yep. You're right Out. The people on this forum just aren't able to help you given the information that you are willing to provide. So I guess this isn't the right place for you to get the answers that you want. Guess you'll just have to go try somewhere else.
MelissaP1
(Alabama)

Posts:10521


06/21/2013 3:44 PM  
Again my HOA paid for dumpsters. Clearly our city/county provides trash pickup. Matter of fact once a week. They even give out trash cans. Why then would my HOA decide to NOT be part of this system? Well because the way our HOA is set up it was impossible to have the regular garbage trucks drive through the neighborhood. Not enough room. Plus the hassle of writing rules/restrictions about placing your cans on the street for pickup would have been a nightmare. So our HOA had 2 dumpsters on 2 sides of the neighborhood for the HOA residents to use. We also had our own recycling pickup even though the city also provides this service as well. So you may see "Rendundancy" but reality is that we needed this for our needs NOT the city's.

So I can imagine the same with your snow clearing. They city probably just drives a straight line down the street. You would call this City provided service. Others would call this a line down the street that is clear. They may want to have the area between their driveways and that clear spot cleared as well? I used to live up north and that snow plow would bury the end of our driveway and we would have to dig it out ourselves. People have died that way. So again I don't see rendundancy there. It's an extra service your HOA (other members) have decided it is worth spending money on.

You are part of a whole. There are no individuals in HOA. Even the board is a group. They are a group that was elected by the owners by majority. So again when you sue, you are suing yourself and your neighbors. Still a concept you just can not conceive of in your head. Call me pro-HOA but I am not blind to the damage one can cause their neighbors in the pursuit of their one opinion.

By the way... Shout out to Dwight!

Former HOA President
JonD1


Posts:0


06/21/2013 4:50 PM  
OUT:

You are realy beginning to bore me. You come to this site offer your limited version of your situation and then complain when others don't respond just the way you would like. Funny when people as less than willing to come clean with details and answer simple questions sort of suggests they are a fraud to me.

"Pending litigation" are you for real? You filed a complaint in small claims court that is not some ground breaking litigation they will be writing about in law journals OUT that is Judge JUDY circus stuff. So now the deatils of the complaint you filed for $10 is confidential. That's the story huh??? You do reside in La La Land.

And OUT just in case it slipped your mind YOU came here and posted a question. I did not request any input, advice, or wisdom from you.
What you did was turn this into something personal. Making assumptions and accusations that are in fact baseless. But in your mind serve your agenda. I have lived on this property since 1985 and over those years we have been sued several times when folks such as you got their shorts in a bunch, just like you. Each time they lost. Just like I would think your case would go. And truth be told I couldn't care less. I just feel sorry for the Board and property that has to respond to nonsense such as yours.

And finally OUT you challenge Melissa because of what you call her "assumptions". Are you losing your marbles? Your entire post was nothing but assumptions about the property I live on and how it is run, why I serve, and the problems I have caused.

There is a word we use in this area, not sure if it has made its way out where you live. If you are unfamiliar easy to Google it for a definition. IMO it seems to fit you well. Putz

10-1 the HOA lawyer hands you your hat..........
JohnC46
(South Carolina)

Posts:11507


06/21/2013 5:33 PM  
Posted By JonD1 on 06/21/2013 4:50 PM
OUT:

You are realy beginning to bore me. You come to this site offer your limited version of your situation and then complain when others don't respond just the way you would like. Funny when people as less than willing to come clean with details and answer simple questions sort of suggests they are a fraud to me.

"Pending litigation" are you for real? You filed a complaint in small claims court that is not some ground breaking litigation they will be writing about in law journals OUT that is Judge JUDY circus stuff. So now the deatils of the complaint you filed for $10 is confidential. That's the story huh??? You do reside in La La Land.

And OUT just in case it slipped your mind YOU came here and posted a question. I did not request any input, advice, or wisdom from you.
What you did was turn this into something personal. Making assumptions and accusations that are in fact baseless. But in your mind serve your agenda. I have lived on this property since 1985 and over those years we have been sued several times when folks such as you got their shorts in a bunch, just like you. Each time they lost. Just like I would think your case would go. And truth be told I couldn't care less. I just feel sorry for the Board and property that has to respond to nonsense such as yours.

And finally OUT you challenge Melissa because of what you call her "assumptions". Are you losing your marbles? Your entire post was nothing but assumptions about the property I live on and how it is run, why I serve, and the problems I have caused.

There is a word we use in this area, not sure if it has made its way out where you live. If you are unfamiliar easy to Google it for a definition. IMO it seems to fit you well. Putz

10-1 the HOA lawyer hands you your hat..........




I will take that bet at 20-1...meaning Out loses...and make money.....LOL
MatthewW4
(Arizona)

Posts:500


06/23/2013 12:35 PM  
Out,

I have tried to stay out of this discussion until now. You initially asked if you were on the right track in suing your association. The answer is no, but I doubt that anyone's opinion on this forum will matter to you.

Contracts can be amended formally or they can be amended constructively, meaning that the parties have mutually agreed to do something other than what the letter of the contract calls for.

Over the past 74 years, the members of your association recognized the legal impossibility of trying to operate under a budget drawn up in 1939 and mutually agreed to amend the contract's assessment provisions. That constructive amendment has been agreed to by all homeowners except one: you!

Your chances of winning your lawsuit are zero. You are seeking to enforce a legally impossible provision of a contract that no one else seems to have a problem with. You will not have much luck selling the argument to the judge that all those other owners have been wrong for the last seven decades and that you - and apparently you alone - have it right.

If you take this case to trial your best hope is that the judge does not hit you up for the association's legal fees.
SharonH9


Posts:0


06/23/2013 1:07 PM  
Posted By MatthewW4 on 06/23/2013 12:35 PM
Out,

I have tried to stay out of this discussion until now. You initially asked if you were on the right track in suing your association. The answer is no, but I doubt that anyone's opinion on this forum will matter to you.

Contracts can be amended formally or they can be amended constructively, meaning that the parties have mutually agreed to do something other than what the letter of the contract calls for.

Over the past 74 years, the members of your association recognized the legal impossibility of trying to operate under a budget drawn up in 1939 and mutually agreed to amend the contract's assessment provisions. That constructive amendment has been agreed to by all homeowners except one: you!

Your chances of winning your lawsuit are zero. You are seeking to enforce a legally impossible provision of a contract that no one else seems to have a problem with. You will not have much luck selling the argument to the judge that all those other owners have been wrong for the last seven decades and that you - and apparently you alone - have it right.

If you take this case to trial your best hope is that the judge does not hit you up for the association's legal fees.




So does that mean that if everyone stops paying from this point forward that makes a constructive amendment because there are no common elements to pay for. The services are being provided by the city.

There may be homeowners not paying now. Out didn't say everyone is paying.

I disagree that Out's chances of winning are zero. You never know how a judge is going to rule. It's still a contract case whether that is the best legal argument or not. Typically legal fees are not awarded in contract cases unless one can prove harassment or oppression meaning that a party purposefully set out to harm another.
MatthewW4
(Arizona)

Posts:500


06/23/2013 3:02 PM  
Posted By SharonH9 on 06/23/2013 1:07 PM

So does that mean that if everyone stops paying from this point forward that makes a constructive amendment because there are no common elements to pay for. The services are being provided by the city.

There may be homeowners not paying now. Out didn't say everyone is paying.



The fact is that he has given us very few facts but a lot of opinions. Sorry, but I do not buy his story that the association now has no expenses.


Posted By SharonH9 on 06/23/2013 1:07 PM

I disagree that Out's chances of winning are zero. You never know how a judge is going to rule. It's still a contract case whether that is the best legal argument or not. Typically legal fees are not awarded in contract cases unless one can prove harassment or oppression meaning that a party purposefully set out to harm another.



In most states, the prevailing party in a contract dispute may recover his attorney fees if the contract provides for it and if the party requests them. There are many factors that a judge may weigh to decide how much, if any, fees to award. In some states, such as Arizona, the judge may even impose a fine of up to $5,000 on a party who raises a frivolous claim or defense.

In this case you have a crackpot versus an established HOA represented by an attorney. The crackpot says the HOA cannot do what it has done without objection (except his) for the last 74 years. Yeah, that's a real cliff-hanger that could go either way, right? I'll put my money on the HOA.

JonD1


Posts:0


06/23/2013 4:04 PM  
Posted By SharonH9 on 06/23/2013 1:07 PM
Posted By MatthewW4 on 06/23/2013 12:35 PM
Out,

I have tried to stay out of this discussion until now. You initially asked if you were on the right track in suing your association. The answer is no, but I doubt that anyone's opinion on this forum will matter to you.

Contracts can be amended formally or they can be amended constructively, meaning that the parties have mutually agreed to do something other than what the letter of the contract calls for.

Over the past 74 years, the members of your association recognized the legal impossibility of trying to operate under a budget drawn up in 1939 and mutually agreed to amend the contract's assessment provisions. That constructive amendment has been agreed to by all homeowners except one: you!

Your chances of winning your lawsuit are zero. You are seeking to enforce a legally impossible provision of a contract that no one else seems to have a problem with. You will not have much luck selling the argument to the judge that all those other owners have been wrong for the last seven decades and that you - and apparently you alone - have it right.

If you take this case to trial your best hope is that the judge does not hit you up for the association's legal fees.




So does that mean that if everyone stops paying from this point forward that makes a constructive amendment because there are no common elements to pay for. The services are being provided by the city.

There may be homeowners not paying now. Out didn't say everyone is paying.

I disagree that Out's chances of winning are zero. You never know how a judge is going to rule. It's still a contract case whether that is the best legal argument or not. Typically legal fees are not awarded in contract cases unless one can prove harassment or oppression meaning that a party purposefully set out to harm another.





OK Sharon here we go again. Where do you find support for your statement that there are no common elements on Out's property? From what I read Out says so but then lists several services the Board provides which are at HOA expense. One being the $5,000 legaL bill generated inj defending the property against Out's lawsuit. Which cost him $10 to file.

And I agree with the logic regarding Out's ability to prove damages and request repayment.

My first question would be Out the money you were charged and piad that you suggest was done in violation of the documents, what was done with that money? Was it stolen by the Board members? Was it confiscated for some illegal use? Well no it was used to pay the costs for services and management of the property which Out has suggested he does not question.
So then the money you would now like back was used to pay for services to your property? YES. Then were do you find damages.

Because Out does not believe the security firm hired by the HOA is necessary does not make it so. The Board can decide what needs to be done without Out's approval or blessing.

Simply because OUT a non-member of the Board feels there are no expenses does not make it so.

He just doesn't like the expenses.

JonD1


Posts:0


06/23/2013 4:27 PM  
Posted By MatthewW4 on 06/23/2013 3:02 PM
Posted By SharonH9 on 06/23/2013 1:07 PM

So does that mean that if everyone stops paying from this point forward that makes a constructive amendment because there are no common elements to pay for. The services are being provided by the city.

There may be homeowners not paying now. Out didn't say everyone is paying.



The fact is that he has given us very few facts but a lot of opinions. Sorry, but I do not buy his story that the association now has no expenses.


Posted By SharonH9 on 06/23/2013 1:07 PM

I disagree that Out's chances of winning are zero. You never know how a judge is going to rule. It's still a contract case whether that is the best legal argument or not. Typically legal fees are not awarded in contract cases unless one can prove harassment or oppression meaning that a party purposefully set out to harm another.



In most states, the prevailing party in a contract dispute may recover his attorney fees if the contract provides for it and if the party requests them. There are many factors that a judge may weigh to decide how much, if any, fees to award. In some states, such as Arizona, the judge may even impose a fine of up to $5,000 on a party who raises a frivolous claim or defense.

In this case you have a crackpot versus an established HOA represented by an attorney. The crackpot says the HOA cannot do what it has done without objection (except his) for the last 74 years. Yeah, that's a real cliff-hanger that could go either way, right? I'll put my money on the HOA.






Matthew:

As rare an occurence for me as it is I have to say I agree with your assessment of this situation.

Out would rather not provide details because they don't sit in his favor.

How much has he been robbed of? Can't say.
How long has he lived there? Can't say.
What was his relationship with the Board prior to this suit? Can't say.
How does he count the fact the US Mail now delivers as a reduction in the need for HOA services? Can't say.
In one post he claims all the owners have been abused by this theft. Then he posts he is only interested in his recouping the stolen funds.

Then Out claims the HOA has no expenses. Why then do they need money?
But then he posts the following:

"You ended stating that HOAs preserve property values. There is not one thing—not ONE—that my HOA has done to preserve my property values per our Declaration of Restrictions (another apparently unknown document). In the last 4 years, however, my city has been called in to clean up vacant (and one especially run-down) properties, plowed snow from our streets without knocking holes in our curbs or obstructing our intersections with snow unlike the private snow plow guy we hire. The city has cut down dead trees (now on their property since we no longer own or are required to maintain formerly common grounds) yet we do pay to have them mowed and insured (why? can anyone say "fiduciary duty"?), and the local police presence can respond to 9-1-1 calls faster than our sham “security” company."

So now if we believe Out's OWN account and reading between the confused lines.... The HOA provides some level or degree of:

snowplowing
landscaping
insurance
security

And lets throw in what we also know LEGAL.

Just how in the confused world Out lives in would the HOA [pay for these services if not by collecting some level of dues.

And why would you state their is no common element maintenance cost and that the CITY does it all when you then state otherwise???

For me the wheels have come off Out's wagon.

You refuse to provide details, you make claims that are not factual, and then you provide information contrary to your own claims.

Yes, you should hold up real well in court.

And finally, to some who read and post responses. Take the time to read carefully the information you have been provided. Read between the lines
before you decide to swallow someone's version of reality hook, line and sinker..... And ask them to explain what does not make sense rather than accepting whatever is offered as FACT!

There are in fact HOA expenses on Out's property. Not what he said a few days ago when he was making a point but then he told you so himself if you bothered to read carefully what he said.

Out's version is full of holes. And rather than understanding ther damage his suit might do to his own property Out remains on his own little crusade.



SharonH9


Posts:0


06/23/2013 4:52 PM  
Okay Jon. I should have said duplication of services. Where I live the HoA used to pay for the water and road maintenance. Now the water is provided by a regional water company. The road maintenance is now provided by the County. Why would we continue to pay for those services when they are not now necessary. But you and I know that a lot of people just go with the status quo. They just pay the fees and don't give it a second thought. We had a case here in Iowa where the City of Des Moines was charging its resident a franchise fee for bringing utilities to the residents that were provided by private companies. One person brought a civil action and argued that the City was charging an illegal fee. The case went to the Iowa Supreme Court and the person won. Now the City of Des Moines has to reimburse the residents of Des Moines millions of dollars for charging this fee. Don't criticize the person who is willing to stick their neck out to set things right. It takes a lot of courage to do that. I could have just paid the fees in my case too but it was outrageously unfair.

Give Out a break. Not everyone lives in an urban area where security is an issue or the public services are subpar. Our County does a great job maintaining our roads and plowing our roads in the winter time. Maybe Out's do too. Don't assume that the services are necessary just because no one else steps up to the plate and questions it.

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