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Subject: Do all Board decisions need to be MSC?
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AmyJ4
(California)

Posts:4


07/21/2020 5:22 PM  
I used to be on the HOA board but not anymore.

During one of the HOA meetings, a decision was made by the Board that "Owner (meaning I) reserves to add an awning at HOA's expense in the future" as the HOA did an awning replacement project prior to my purchase of the unit and failed to replace my unit's awning so owes me an awning.

I was there at the meeting and the chair of the HOA clearly said to document this future right on this in the meeting minutes.

Now, the new HOA board says that I'm not entitled to the awning even if the approved minutes was written that way as the decision was not Motion-Second-Carried? I'm not sure if we had MSC but just not documented. However, it seems unreasonable to me that I'm not entitled to it now even though it was documented in the meeting minutes as a fact?

Do all decisions by the Board need to be MSC? Or, the documentation in the minutes with no objections is also a silent approval. I am in contact with two other ex-HOA board members who were in the same meeting. If they all recall agreeing to the awning, would that be sufficient? I'm not sure what to do here.
AugustinD


Posts:3683


07/21/2020 5:35 PM  
Even if a MSC occurred, generally (but not always) subsequent boards have the right to overturn decisions of previous boards.
KerryL1
(California)

Posts:7397


07/21/2020 5:41 PM  
Can you tell us what the wording IS in the minutes?? Do they say the Association will replace your awning?

There is no legal requirement for a motion-2nd-carried.

In fact, in smaller assemblies, there's no requirement for a second--legal or otherwise (i.e., in Robert's Rules) though we do second motions in our HOA.

I don't think two other who say they agreed with the decision will help you.
KerryL1
(California)

Posts:7397


07/21/2020 5:41 PM  
Can you tell us what the wording IS in the minutes?? Do they say the Association will replace your awning?

There is no legal requirement for a motion-2nd-carried.

In fact, in smaller assemblies, there's no requirement for a second--legal or otherwise (i.e., in Robert's Rules) though we do second motions in our HOA.

I don't think two other who say they agreed with the decision will help you.
AmyJ4
(California)

Posts:4


07/21/2020 5:52 PM  
Under Board Action Items/Discussion header of the minutes:

"An additional note is for the owner of Suite XXX and if they want to install an awning that was erroneously installed for Suite XXX, Owner reserves the right to do so at HOA's expense."

Other items under the same header has "MSC" approvals but only this item did not have MSC. Therefore, the new Board said they will not honor that previous Board's request.

1. Can new Board over-turn previous Board's agreement?

2. Do I have any legal basis?


This is a small board. There were only five members of the Board and I was one of the Board member. During that meeting, no one disagreed to add this to the meeting minutes. The meeting minutes was approved by the Board at the next board meeting.

Where can I read more on "Robert's Rules."




AugustinD


Posts:3683


07/21/2020 5:56 PM  
Posted By AmyJ4 on 07/21/2020 5:52 PM
Under Board Action Items/Discussion header of the minutes:

"An additional note is for the owner of Suite XXX and if they want to install an awning that was erroneously installed for Suite XXX, Owner reserves the right to do so at HOA's expense."

[snip]

2. Do I have any legal basis?
For what reason (beyond this mistake in which unit got the new awning) did the previous board say an awning was owed? Was the awning old and unsightly? Are all the awnings the responsibility of the HOA (and not individual members)?

Why is the current board refusing to install an awning on your home?
AmyJ4
(California)

Posts:4


07/21/2020 6:13 PM  
The previous Board said that the awning was owed to my unit as the original intent was to replace my old and unsightly awning (HOA's responsibility) but the installer made the mistake and installed the awning in the wrong unit. The HOA has since changed the rule that owner is responsible for maintaining awning.

The Board agreed in the minutes that when I request an awning in the future, that they will add an new awning at HOA's expense. This agreement in the minutes was from three years ago. My big lesson learned is that I should not have waited this long to request an awning. I should have added that awning three years ago when the minutes was approved and old Board was still in place.

Please advise what I should do now to have the Board honor what was agreed by the old Board.
AugustinD


Posts:3683


07/21/2020 6:17 PM  
Posted By AmyJ4 on 07/21/2020 6:13 PM
The HOA has since changed the rule [to the] owner [being] responsible for maintaining awning.
What exactly do your HOA's covenants currently say on the subject of who is responsible for maintaining the awning?
AmyJ4
(California)

Posts:4


07/21/2020 6:27 PM  
Current covenant says that owner is responsible for maintaining the awning.
AugustinD


Posts:3683


07/21/2020 6:30 PM  
Posted By AmyJ4 on 07/21/2020 6:27 PM
Current covenant says that owner is responsible for maintaining the awning.
Did the board complete a legitimate process to amend the covenants? Typically the amendment section of the covenants requires 67% or more of owners approving a proposed amendment for the amendment to be valid. Amending the covenants is typically a long process, requiring many legal i's to be dotted and t's to be crossed.
MarkW18


Posts:1290


07/21/2020 6:31 PM  
If a new board is going to overturn the decision of a previous board, it has to be on grounds that the previous board was incorrect, for example the CCRs states the awnings are the responsibility of the owner, not the HOA. They can't overturn because there wasn't a proper MSC.

Why? Unless your association's governing documents require the association's board meetings be conducted by some form of parliamentary procedure (which is 99.999% unlikely), then a simple yes or approved will be enough.

Annual meetings, under California Civil Code §5000(a) must be conducted using some form of parliamentary procedure.
AugustinD


Posts:3683


07/21/2020 6:35 PM  
From https://www.davis-stirling.com/HOME/Rescinding-a-Decision:

QUESTION: Our board voted to make a repair and recorded the vote in the minutes. At its very next meeting, they voted not to make the repair. Can the board change its mind like that?

ANSWER: Yes, boards can change their minds by rescinding and amending motions that were previously adopted. (Roberts Rules, 11th ed., p. 305.) Boards may receive new information that cause them to modify spending priorities. In addition, subsequent boards are not bound by the decisions of prior boards. Subsequent boards are free to change direction by a majority vote of a quorum of the board. However, boards are subject to any contracts entered into by prior boards and should not repudiate contracts without advice of counsel.
MarkW18


Posts:1290


07/21/2020 7:03 PM  
Here is the problem, UNLESSthere governing documents state that the board will be conducting BOARD meeting using Roberts Rule of LaW, then the citation you quoted from Mr. Adams doesn't work.
AugustinD


Posts:3683


07/21/2020 7:08 PM  
Posted By MarkW18 on 07/21/2020 7:03 PM
Here is the problem, UNLESSthere governing documents state that the board will be conducting BOARD meeting using Roberts Rule of LaW, then the citation you quoted from Mr. Adams doesn't work.
Nonsense. With a few caveats, there is nothing that says a board cannot change its mind.
In fact, when circumstances change, a board may have a fiduciary duty to change its mind.
MarkW18


Posts:1290


07/21/2020 7:22 PM  
Posted By AugustinD on 07/21/2020 7:08 PM
Posted By MarkW18 on 07/21/2020 7:03 PM
Here is the problem, UNLESSthere governing documents state that the board will be conducting BOARD meeting using Roberts Rule of LaW, then the citation you quoted from Mr. Adams doesn't work.
Nonsense. With a few caveats, there is nothing that says a board cannot change its mind.
In fact, when circumstances change, a board may have a fiduciary duty to change its mind.



Did I ever say they couldn't change their mind. NO! They can't cite what you cited as the reason. You also can't change the decision based on you didn't follow MSC or Robert's Rule. You could change your mind if the CCRs, for instance, say the awnings are the full responsibility of the homeowner.
AugustinD


Posts:3683


07/21/2020 7:34 PM  
Posted By MarkW18 on 07/21/2020 7:22 PM

Did I ever say they couldn't change their mind. NO! They can't cite what you cited as the reason.
You and I are reading the excerpt from the Davis-Stirling site differently. I think the excerpt is also about situations where the covenants do not require the use of Robert's Rules.

Posted By MarkW18 on 07/21/2020 6:31 PM
If a new board is going to overturn the decision of a previous board, it has to be on grounds that the previous board was incorrect, [snip]
Within the spectrum of subjectivity that occurs from one board to another, and with some caveats, no, not really.
MarkW18


Posts:1290


07/21/2020 7:49 PM  
Again, I repeat, unless their governing documents state they are to use some form of parliamentary procedure, citing what you cited is not relevant.

Again, may I remind you the topic is MSC, and the association would not be bound to Robert's Rule unless the gov docs say so!
AugustinD


Posts:3683


07/21/2020 7:54 PM  
Posted By MarkW18 on 07/21/2020 7:49 PM
Again, I repeat, unless their governing documents state they are to use some form of parliamentary procedure, citing what you cited is not relevant.
'Asked and answered.'

Posted By MarkW18 on 07/21/2020 7:49 PM
Again, may I remind you
No, you may not, because your 'reminder' is factually incorrect.
MarkW18


Posts:1290


07/21/2020 8:04 PM  
Posted By AugustinD on 07/21/2020 7:54 PM
Posted By MarkW18 on 07/21/2020 7:49 PM
Again, I repeat, unless their governing documents state they are to use some form of parliamentary procedure, citing what you cited is not relevant.
'Asked and answered.'

Posted By MarkW18 on 07/21/2020 7:49 PM
Again, may I remind you
No, you may not, because your 'reminder' is factually incorrect.



I am done with you!
SueW6
(Michigan)

Posts:717


07/22/2020 1:12 AM  
It sounds like there was a consensus that the error of the wrong installation would be corrected, if the owner agreed. The owner’s mistake was in waiting three years to request correctIon of the error.

Oh for god’s sake - split the cost.

And in the future, the board should be sure that when spending money, it is motioned and approved, and that the minutes are accurate.

Small claims court might also be an avenue for the owner to consider.
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