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Subject: Board Resolution and Enforcement Take 2
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CjB2
(Texas)

Posts:10


03/24/2020 6:51 AM  
This is a repost of my previous topic;
Board Resolution and Enforcement

This board has been consistently doing things that go above and behind their control according to the CCR's in my opinion. Overall my house was completed in September of 2018. I asked for my construction deposit back, which I finally received approximately 1.5 Months after the request because one of the ACC/Board members finally came by my property and gave approval back to the Property Management company to return my construction funds marking my home as complete. Details below, short of it BoD is trying to fine my account, I have paid my assessments this year as required and looking for next steps, if I shall pursue a lawsuit, that ultimately costs everyone money including the members. I have already had a meeting with the board that seemed to have prompted this. This board are all buddies from our same small town and have stated before that they work on the good ole boy system. Property management company is no help either. Looking for suggested next steps. Appreciate your thoughts and insight here. A lot of funny stuff going on.

The board thought that I was going to have a driveway past my house to another structure on the property that was constructed 10 years prior. I was not under that same impression, and my driveway completed where it is now since the end of my home in Sept of 18. As mentioned in the above paragraph, the board and MC, returned my funds which mark my home as complete in the following portion of our DCC&R’s;

* All Builders, Owners and their Contractors shall be responsible for any damage caused or debris left on the roads, roadside ditches and easements during the construction of improvements on a Lot. Further, any Builder or Owner on behalf of his Contractor shall be required to deliver to the Association a minimum damage deposit of $1,000.00 or such reasonable amount as may be determined by the Architectural Control Committee prior to beginning construction of any Dwelling or other building. This damage deposit shall be returned to the Owner or Builder upon completion of said Dwelling or other building provided the Association determines that no damage to the roads, ditches or easements was caused by Owner, Builder or Contractor and no debris was left on the roads, roadside ditches and easements by the Owner, Builder or Contractor. Further, all Owners and Builders shall supply and maintain a portable toilet and trash bins for construction trash during the construction of a Dwelling in the Subdivision. All Owners, Builders and Contractors shall be responsible for keeping construction site free of debris and trash and a concrete clean out area must be provided by the Owner, Builder or Contractor. Concrete clean out of vehicles in roadside ditches is prohibited. ….

Additionally in the ACC Checklist forum it also states the following;

* $1,000.00 Damage Deposit to be returned upon completion of construction….


Now fast forward, to 2019 I had a meeting with the board, in September. There was lots of back and fourth in this meeting one of the board members stormed out and the board president started stating that my house is in violation and has been in violation since day one. To which I stated this is news to me as, I have received my funds back as mentioned above marking my home as complete. Also, stating that I have never received a violation letter for their claims and that they are bringing this to my attention approximately 11 months after the fact. Now some may say that it could have been over looked, however the contract between the Board and the MC, states the following around inspections, (the MC says they come by ever two weeks but are contractually required to do every month, both of which I do not believe to occur):

General:
Managing Agent agrees to:
1. Property Visits. Conduct monthly inspections of the entire Project including, but not limited to, all streets and visual exterior inspection of all Units, for the purpose of upholding the safety, visual appeal, and security of properties. Specifically, Managing Agent shall:
* Identify CCR/By Law violations;
* Promptly send enforcement letter to those in non- compliance;
* Include violation report and verification of compliance in each Board package prior to monthly Board meeting; and
* Escalate enforcement in compliance with CCR/By- laws.


To this date I have still yet to receive a violation letter for my property being out of compliance, while I have received other violations for trailers. Instead I have received letters Titled Final Notice and Notice. Which attempt to state that my property has been per the associations finings policy and will continue to be fined as suction… The fine for this infraction of the policy is 500 per day…. They are trying to refer to the board resolution we will get into below. What has prompted this is that have received emails (November 2019, March 2020) stating my account is past due by 6000 dollars. The date which the fines were placed on my account was the day after the meeting with the board in September of 2019. It is also worth noting that there is no due date on these statement accounts.

On these emails it reads the following; Description: 12 Bulk Add Fines, Invoice ; XXXX Dt/Charge: 6000.00, Balance 6000.00

As soon as I got this email in November of 2019, I asked if there was an error on my account and a copy for the Invoice number above. To which neither I got a response too. After calling the PM company I got a hold of someone that said that the board approved to fine my account, to which I stated that is not in line with deeded CCR’s fining policy. In response, I received via email the Board resolution to adjust the fining policy to the items below.

* In order to begin the enforcement and compliance of all homeowners and residents with the Declaration of Covenants, Conditions and Restrictions the Board of Directors will adopt the following violation fee schedule.


Description Amount When Applied Recurring
CC&R Violation $50.00 After Cure Period Every Day until cured
Minimum Violation. $25.00 Upon notice Every Day until cured
Maximum Violation $500.00 Upon notice Every Day until cured
Lot Mowing $150.00 Per Acre Every 30-Days until the association cures


After I saw this email come through I was shocked to find that there was a change (amendment to which I believe is required in order for this to be deeded). I have been told by the MC that this is not an amendment that would require 66 2/3s approval because;

The association and Board of Directors has every right and obligation to create and clarify rules and regulations as outlined in the Declaration of Covenants, Conditions and Restrictions.  See ARTICLE VIII DUTIES AND POWERS OF THE PROPERTY OWNERS ASSOCIATION.
Rules and Regulations do not require the vote of the membership.  Changes to the DCC&R's would require a vote of the membership.

To which I responded;

Article VIII Duties and Powers of the Property Owners Association, Section 8.10 of the CCRS does state the following “The Association may adopt, amend, repeal and enforce rules and regulations (“Rules and Regulations"), fines levees enforcement provisions as deemed necessary or desirable with respect to the interpretation of implementation of this Declaration, the operation of the Association, the use and enjoyment of the Common Areas, and the use of any other property, facilities or improvements owned or operated by the Association.

What that means is that for items listed above that the board feels necessary may be done under this section given that there a is majority of approval by all lot owners in the subdivision, with a percentage of 66 2/3%. You have just confirmed that an amendment to the CCRs would require this vote from the membership.

Section 8.11 (i.) .i) is specific enough for there to be no further interoperation required as it states the following; "Fines will be based on a per notice or violation charge. For first violation, a fine ranging from 50 to 500 will be assessed. In the event the violation is not cured within the timeframe specified in the final notice of violation, and additional fine ranging from 100 to 500 will be assessed there after for every 30 day period in which the violation is not corrected. “

Here are the DCC’Rs

ARTICLE VIII
DUTIES AND POWERS OF THE PROPERTY OWNERS ASSOCIATION

Section 8.01 General Duties and Powers of the Association. The Association has been formed to further the common interest of the Members. The Association, acting through the Board of Directors or through persons to whom the Board of Directors has delegated such powers (and subject to the provisions of the Bylaws), shall have the duties and powers hereinafter set forth and, in general, the power to do anything that may be necessary or desirable to further the common interest of the members, to maintain, improve and enhance the Common Areas and to improve and enhance the attractiveness and desirability of the Subdivision and any portion of the Annexable Area which becomes subject to the jurisdiction of the Association. The Association shall have the authority to act as the agent to enter into


Section 8.10 Power to Adopt Rules and Requlations. The Association may adopt, amend, repeal and enforce rules and regulations ("Rules and Regulations"), fines, levies and enforcement provisions as may be deemed necessary or desirable with respect to the interpretation and implementation of this Declaration, the operation of the Association, the use and enjoyment of the Common Areas, and the use of any other property, facilities or improvements owned or operated by the Association.

Section 8.11 Power to Enforce Restrictions and Rules and Regulations, Covenant Enforcement and Fining Policy The Association (and any Owner with respect only to the remedies described in (ii) below) shall have the power to enforce the provisions of this Declaration and the Rules and Regulations and shall take such action as the Board of Directors deems necessary or desirable to cause such compliance by each Member and each Related User. In addition to the other remedies specifically set out in this document and without limiting the generality of the foregoing, the Association shall have the power to enforce the provisions of this Declaration and of Rules and Regulations of the Association by anyone or more of the following means: (i) by entry upon any property within the Subdivision after notice and hearing (unless a bona fide emergency exists in which event this right of entry may be exercised without notice (written or oral) to the Owner in such manner as to avoid any unreasonable or unnecessary interference with the lawful possession, use or enjoyment of the improvements situated thereon by the Owner or any other person), without liability by the Association to the Owner thereof, for the purpose of enforcement of this Declaration or the Rules and Regulations; (ii) by commencing and maintaining actions and suits to restrain and enjoin any breach or threatened breach of the provisions of this Declaration or the Rules and Regulations; (iii) by exclusion, after notice and hearing, of any Member of Related User from use of any recreational facilities within the Common Areas during and for up to sixty (60) days following any breach of this Declaration or such Rules and Regulations by such Member or any Related User, unless the breach is a continuing breach in which case exclusion shall continue for so long as such breach continues; (iv) by suspension, after notice and hearing, of the voting rights of a Member during and for up to sixty (60) days following any breach by such Member or a Related User of a provision of this Declaration or such Rules and Regulations, unless the breach is a continuing breach in which case such suspension shall continue for so long as such breach continues; (v) by levying and collecting, after notice and hearing, an assessment against any Member for breach of this Declaration or such Rules and Regulations by such Member or a Related User which assessment reimbursed the Association for the costs incurred by the Association in connection with such breach; (vi) by levying and collecting, after notice and hearing, reasonable and uniformly applied fines and penalties, established in advance in the Rules and Regulations of the Association, from any Member or Related User for breach of this Declaration or such Rules and Regulations by such Member or a Related User; and (vii) by taking action itself to cure or abate such violation and to charge the expenses thereof, if any, to such violating Members, plus attorneys’ fees incurred by the Association with respect to exercising such remedy.

(a.) Establishment of Violation. Any condition, use, activity or improvement which does not comply with the provisions of the Declaration, Bylaws, the Rules and Regulations of the Association or the architectural control standards bulletins or guidelines, shall constitute a "Violation" under this Policy for all purposes.

(b.) Report of Violation. The existence of a Violation will be verified by a field observation conducted by the Board or its delegate. For the purpose of this Enforcement Policy, the delegate of the Board may include a management association, an officer or member of the Board, a member of the Architectural Control Committee, or a member of any other committee established by the Board for this purpose. A timely written report shall be prepared by the field observer for Violation, which will include the following information:

* Identification of the nature and description of the Violation(s);

* Identification by street address and legal description, if available, of the Lot on which the Violation exists.

* Identification of the authority establishing that the subject improvements, modifications, conduct, conditions, etc. constitute a Violation(s).

* Date of the verification observation and name of the person making such
observation.

(c.) Notice of Violation. As soon as practicable after the field observation report is prepared, the Association will forward to the Owner of the Lot in question written notice of the Violation(s) by first class mail or personal delivery and by certified mail, return receipt requested (the "Notice of Violation"). A Notice of Violation need not be sent if the alleged violator has previously received a Notice of Violation relating to a similar Violation within six months of the occurrence of the current Violation and was given a reasonable opportunity to cure the Violation. If the alleged violator was given notice and an opportunity to cure the similar Violation within the previous six (6) months, the Board may impose sanctions as authorized by this Declaration without notice to the Owner other than the Final Notice of Violation described in paragraph (d) below. The Notice of Violation will state the following:

* The nature, description and location of the Violation, including any property damage caused by the owner.

* The authority for establishing the Violation, including the authority for recovering property damages caused by the Owner.

* The proposed sanction to be imposed, including the amount of any fine or the amount claimed to be due from the Owner for property damage.

* If the Violation is corrected or eliminated within a reasonable time after the Owner’s receipt of the Notice of Violation that a fine will not be assessed and that no further action will be taken.

* The recipient may, on or before thirty (30) days from the receipt of the Notice of Violation, deliver to the Association a written request for a hearing.

* If the Violation is not corrected or eliminated within the time period specified in the Notice of Violation, or if written request for a hearing is not submitted on or before thirty (30) days from the receipt of the Notice of Violation, that the sanctions delineated in the Notice of Violation may be imposed and that any attorney’s fees and costs will be charged to the Owner.

(d.) Final Notice of Violation. A formal notice of the Violation and the sanction to be imposed, including the amount of any fine or the amount of any property damage (the "Final Notice of Violation") will be sent by the Association to the Owner by regular first class mail and by certified mail, return receipt requested, under any of the following situations:

* Where, within the time period specified in the Notice of Violation, the Violation has not been corrected or eliminated;

* Where, within thirty (30) days from the date of receipt by the Owner of the Notice of Violation, the Association has not received written request for a hearing; or

* Where, the Owner was previously notified of, and was given a reasonable opportunity to cure, a similar Violation within the preceding six (6) months.

(e.) Request for a Hearinq. If the Owner challenges the proposed action by timely requesting a hearing, the hearing shall be held in executive session of the Board affording the alleged violator a reasonable opportunity to be heard. Such hearing shall be held no later than the 30 h day after the date the Board receives the Owner’s request for a hearing. Prior to the effectiveness of any sanction hereunder, proof of proper notice of the hearing shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, agent or delegate who delivered such notice. The notice requirement shall be sent no later than the 10th day before the date of the hearing. The Board or the Owner may request a postponement, and, if requested, a postponement shall be granted for a period of not more than ten (10) days. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed by the Board. The Board shall notify the Owner in writing of its action within ten (10) days after the hearing. The Board may, but shall not be obligated to, suspend any proposed sanction if the Violation is cured within the ten-day period. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any Owner.

(f.) Correction of Violation. Where the Owner corrects or eliminates the Violation(s) prior to the imposition of any sanction, no further action will be taken (except for collection of any monies for which the Lot Owner may become liable under the Enforcement Policy). Written notice of correction or elimination of the Violation may be obtained from the Board upon request for such notice by the Owner and upon payment of a fee for same, the amount of which is set by the Board.

(g.) Corrective Action. Notwithstanding any other provision contained herein to the contrary, where a Violation is determined or deemed to exist, the Board may undertake to cause the Violation to be corrected, removed or otherwise abated, if the Board, in its reasonable judgment, determines the Violation may be readily corrected, removed or abated without undue expense and without breach of the peace. Where the Board decides to initiate any such action, the following will apply:

* The Board must give the Owner and any third party that is known to the Association to be directly affected by the proposed action prior written notice of undertaking of the action.

* Costs incurred in correcting or eliminating the Violation will be referred to the Association to be recovered from the Owner.

* The Association, and its agents and contractors, will not be liable to the Owner or any third party for trespass or any damages or costs alleged to arise by virtue of action taken under this paragraph g.

(h.) Referral to Leqal Counsel. Where a Violation is determined or deemed determined to exist and where the Board deems it to be in the best interests of the Association to refer the Violation to legal counsel for appropriate action, the Board may do so at any time. Such legal action may include, without limitation, sending demand letters to the violating Owner and/or seeking injunctive relief against the Owner to correct or otherwise abate the Violation. Attorney's fees and all costs incurred by the Association in enforcing the Governing Documents and administering this Enforcement Policy shall become the personal obligation of the Owner.

(i). Fines. Subject to provisions of this Enforcement Policy, the imposition of fines will be on the following basis:

Fines will be based on a per notice or violation charge. For a first violation, a fine ranging from $50 to $5O0 will be assessed. In the event the violation is not cured within the timeframe specified in the Final Notice of Violation, an additional fine ranging from $100 to $500 will be assessed thereafter for every thirty (30) day period in which the violation is not corrected.

* Imposition of fines will be in addition to and not exclusive of any other rights, remedies and recoveries of the Association as created by this Enforcement Policy or this Declaration. The Board of Directors may elect to set up a payment arrangement. The Board of Directors may elect to suspend voting privileges.

* Fines are imposed against Lots and become the personal obligation of the Owners of such Lots.

* Fines related to and during the construction period of a new home: Fines will be based on a per notice or violation charge. For a first violation, a fine in the amount of $100 will be assessed and will be accompanied by a Stop Work Order. Failure to cease construction activity while in noncompliance will result in a daily assessed fine of $100 until such time as construction activity ceases or the violation is cured. In the event the violation is not cured within fifteen (15) days after the date of the Final Notice of Violation, an additional fine of $150 will be assessed, and the fine will increase to $290 thereafter for every fifteen
(15) day period in which the violation is not corrected.

(j.) Notices. Unless otherwise provided in the Enforcement Policy, all notices required by this Enforcement Policy shall be in writing and shall be deemed to have been duly given if delivered personally and/or if sent by United State Mail, first-class postage prepaid, to the Owner at the address which the Owner has designated in writing and filed with the Secretary of the Association or, if no such address has been designated, to the address of the Lot of the Owner.

(@ Where the notice is directed by personal delivery, notice shall be deemed to have been given, sent, delivered or received upon actual receipt by any person accepting delivery thereof at the address of the recipient as set forth in such notice or if no person is there, by leaving the notice taped to the front door of the residence.

* Where the notice is placed into the care and custody of the United State Postal Service, notice shall be deemed to have been given, sent, delivered or received, as of the third (3rd) calendar day following the date of postmark of such notice bearing postage prepaid and the appropriate name and address as required herein.

Where a day required for an action to be taken or a notice to be given, sent, delivered or received, as the case may be, falls on a Saturday, Sunday or United State Postal Service holiday, the required date for the action or notice will be extended to the first day following which is neither a Saturday, Sunday or United State Postal Service holiday.


(IV) Where the Board has actual knowledge that such situations exists, any action to be taken pursuant to this Enforcement Policy which would directly affect the property of a third party or would be the responsibility of a party other than the Owner, notices required under this Enforcement Policy may be given, if possible, to such third party in addition to the Owner. Notwithstanding any notice sent to a third party, the Owner remains the party responsible for compliance with the requirements of the Declaration. The Board shall accept a response from any such third party only upon the written direction of the Owner of the Lot upon the Violation exists.

Where the interest of an Owner in a Lot have been handled by a representative or agent of such Owner or where an Owner has otherwise acted so as to put the Association on notice or communication from the Association pursuant to this Enforcement policy will be deemed full and effective for all purposes if given to such representative or agent.

(vi) Where an Owner transfers record title to a Lot at any time during the pendancy of any procedure prescribed by this Enforcement Policy, such Owner shall remain personally liable for all costs and fines under this Enforcement Policy. As soon as practical after receipt by the Association of a notice of a change in the record title to a Lot which is the subject of enforcement proceedings under this Enforcement Policy, the Board may begin enforcement proceedings against the new Owner in accordance with this Enforcement Policy. The new Owner shall be personally liable for all costs and fines under this Enforcement Policy which are the result of the new Owner’s failure and/or refusal to correct or eliminate the Violation in the time and manner specified under this Enforcement Policy.

(k.) Cure of Violation During Enforcement. An Owner may correct or eliminate a Violation at any time during the pendancy of any procedure prescribed by this Enforcement Policy. Upon verification by written report to the Board and sent, where appropriate, to the Board that the Violation has been corrected or eliminated; the Violation will be deemed no longer to exist. The Owner will remain liable for all costs and fines under this Enforcement Policy, which costs and fines, if not paid upon demand therefore by Management, will be referred to the Board of Directors to the Association for collection.

Failure of the Association, the Developer, or of any Owner to take any action upon any breach or default with respect to any of the foregoing violations shall not be deemed a waiver of their right to take enforcement action thereafter or upon a subsequent breach or default.



SheliaH
(Indiana)

Posts:3048


03/24/2020 7:55 AM  
I looked at your last post, so I'm not going to read all of this (it's easier to summarize the situation and ask your question).

From that last conversation and half of this post, it appears you have three issues and it's best to keep them separate so it's easier to follow. First, there's the dispute as to whether your house is or isn't in violation and if you can be fined. Second, can the board amend bylaws without homeowner approval and third, can the board appoint other people (their friends) to the board.

For the first issue, you know what your documents say about fines, violations and appeal rights because you posted all of that. Are you concerned the board isn't following those procedures as written or are you upset at the decisions they've made regarding your home's compliance and the fine?

I don't remember seeing where you've asked for a formal hearing - that really should be your next step where you can hash out all of this. If they rule against you, that doesn't stop you from pursuing legal action. whether you'd win or not, who can say most of us aren't attorneys or judges? If you want to take this further, talk to your own attorney on what your options are. If possible, I'd push for alternative dispute resolution, if available. An independent arbitrator would hear both sides and render a decision. Sometimes, both sides have to agree in advance to comply with that decision - just like in court, there's a 50-50 chance you'll win or lose, so decide what you can deal with.

Regarding the bylaws, here's the general hierarchy when it comes to HOA bylaws, CCRs and state/federal/local law

1 - federal
2 - state
3- local (city, county)
4 - HOA documents (bylaws and CCRs)
5 - Rules and regulations enacted by the board.

In most cases, the board can enact rules and regulations as long as they don't contradict the bylaws and CCRs.
The bylaws dictate how the HOA is to be run (number of board members, length of term, voting rights of members, etc). If they state amendments to the documents have to be approved by homeowners, the board can't just say, ok, we want to have X number of board members instead of Y and make that a rule - it has to be approved by the homeowners (usually a percentage). So keep reading your document (you don't have to quote all of that here) and see what it says.

Then start talking to your neighbors - you'll need help in bringing these folks to heel. Maybe your neighbors don't know these folks are trying to stack the board - to stop them, enough people have to get involved to either vote everyone out or recall them and replace them with other homeowners who will behave. That won't happen overnight and won't be easy, and unfortunately, you may find a lot of your neighbors don't give a flying you know what about any of this. Decide right now how far you're willing to go. That should take care of #2 and #3.

I hope this is helpful - good luck in whatever you decide to do.
CjB2
(Texas)

Posts:10


03/24/2020 9:52 AM  
Thank you for having a a look Shelia, I have consulted with an attorney, one wanted a 3500$ retainer and charges 350 an hour while the other said that I don't have any damages yet. My issue is this, how can a HOA / BOD come back after the fact and try and fine me for something specially at a rate now that is several thousand dollars. When I challenge/ question them on it they try and point to the resolution they signed and say that it follows the associations fining policy. They have not followed the violation policy. That is part of the issue is that you are going to enforce something, make sure it follows the letter of the CCRs which they have not. I have had a formal hearing, that was where the board member stored out and the day after is when the fines were dated. I have talked to many neighbors, they have as well many don't get invoveld or speak up as they are either avoiding conflict or don't want to have a target on them either.
SheliaH
(Indiana)

Posts:3048


03/24/2020 11:19 AM  
unfortunately, there are board members who do all sorts of stupid stuff - if they were going to fine you, they should have said so if the hearing went against you. Sometimes this stuff happens because someone (or several people) on the board want to make an example of you - I wouldn't be surprised if the person who stormed out is one of them. People generally HATE being called out on their own BS.

It's unfortunate your neighbors seem sympathetic, but won't push further than that. That's also typical - people see others get shut down and they do the same because they don't want any drama. Retaliation can also be a thing so when you find you're objecting to something the board did, is doing or is trying to do, you have to anticipate that and then decide if all the ensuing shitstorm is worth it.

It may take longer to deal with the board's changing the rules on a whim, because, as I said earlier, you need the power of other homeowners to stand up and some people don't seem to be good at math. Otherwise, they'd know 40 or 50 or even 20 pissed off homeowenrs vs. 3 or 5 or 7 board members isn't pretty.

Until then, check if a certified arbitrator or mediator is in your area so you can propose alternative dispute resolution to settle this once and for all. Some (many?) are also attorneys, so you may need to begin with the local or state bar association. If there's a law school in the area, see if any of the faculty are certified - maybe one would be willing to conduct a hearing. Once upon a time, the BBB in my area had a mediation program where people from the community were trained - don't know if it's still around and I recall the service was only offered to BBB member companies.

Some arbitrators may charge as much as the attorney who wanted a $3500 retainer, so be sure to shop around. ONe way to get the board to agree to this is to suggest that you and the association split the bill, with the loser having to reimburse the winner. If such a hearing is possible, I hope the arbitrator can come up with a solution that makes you both happy.

PS - I don't think you would, but I may as well remind you that this argument over the fine DOES NOT justify your not paying assessments, so don't even entertain the notion. Otherwise, you'll wind up paying the fine, the back assessments, plus the collection costs the association incurred in pursuing the debt.
GeorgeS21
(Florida)

Posts:2299


03/24/2020 4:35 PM  
Wow ... OP needs to break this up into digestible pieces ...
JohnC46
(South Carolina)

Posts:9299


03/24/2020 4:50 PM  
Posted By GeorgeS21 on 03/24/2020 4:35 PM
Wow ... OP needs to break this up into digestible pieces ...



I agree. Enough on the run on posts which few will read.
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Forums > Homeowner Association > HOA Discussions > Board Resolution and Enforcement Take 2



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