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Subject: removal of a board member
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SusanN
(Hawaii)

Posts:2


09/21/2006 5:40 PM  
Aloha, I am a newly elected president of our HOA, a condo community with 160 units.
A board members husband is having a dispute with the HOA, the management company and a towing company for towing his car and supposed damage to the car while he was illegally parked in our community.
The husband has harrassed myself and the management company and has threatened to sue the board.
The management companies legal team has issued a notice to the person that we take no responsibility for his car as he was parked illegally. I am in full agreement with the ruling.
The wife, board member, is also in the dispute, yet being much nicer about it.
I feel that the wife as a board member should resign but I don't know how to go about having her do so, diplomatically and kindly.
Any feedback would help.
Aloha from Hawaii!!
sue
HaroldS
(Arizona)

Posts:906


09/21/2006 6:23 PM  
Was the area he was parked posted no parking with a sign stating a parked vehicle would be towed? Generally those towing signs also have a disclaimer about damage, but that doesn't relieve the tow driver from using proper care. Was a warning given and repeatedly ignored? Who gave the order to have it towed? Why is he focusing on you? Have all cars parked illegally been towed or just his? Towing always causes stress and should be used as a last resort for repeat offenders. (That's just my opinion.) Harold
p.s. Why should the wife resign?
WilliamT
(Arizona)

Posts:489


09/22/2006 7:23 AM  
The husband has a right to protest the towing, and he has the right to threaten legal action.

Exactly what has he done that you consider harassment?

If the CC&R's do not give the board authority to tow, then the Rules and Regulations cannot add towing to the rules. In that case it may be possible that the board did not have authority to tow.

My suggestion is that all of the board members and the management company immediately review the CC&R's. If they don't give authority to tow illegally parked cars, then the Rules and Regulations cannot add towing to the rules. If the board had the car towed without CC&R authority, the board would likely lose a law suit and the association will be cost a lot of money for damages and both sides attorney fees.

The board may be considered negligent in their fiduciary duties for not following the CC&R's and could be sued individually. The board D&O coverage will not cover negligence by board members, so you also need to talk with your insurance agent.

I highly suggest that the board immediately consult an HOA attorney to interpret the CC&R's and get legal advice in this manner.

If towing is not in the CC&R's the attorney will probably advise the association to pay for the car's damage and refrain from any future towing.

You have not stated that the board member wife has not been performing her fiduciary duty as a director. Why do you feel she should resign? She is not responsible for her husbands statements, and you said that she has been polite regarding the towing incident. In this case she may be a valuable asset. If she sees that the other board members are looking to make sure they did the right thing, then she may ask her husband to be patient until things are worked out.

I suggest that the board continue working with the wife in a professional manner as a respected board member.

When you receive advice from an attorney, remember that is priveledged information and cannot be disclosed in discovery. The advice must not be discussed with anyone, including the husband. It should only be discussed in executive session, and everyone in the session should be reminded that this information is confidential.

If the board member wife were to discuss the attorney's advice with her husband, then that waives the attorney client priveledge and every thing that the attorney has said to you can be disclosed in court by the opposing attorney. That's bad news.

Ask your attorney about this, because s/he may advise you to have the wife recuse herself from an executive session for only the time that the advice is being discussed.

The attorney may also say that she can be there.

Follow the attorney's advice to the letter.

Good luck

BradP
(Kansas)

Posts:2640


09/22/2006 7:40 AM  
Susan:

If his vehicle was damaged from the towing he has a case to stand on. Furthermore if you didn't have signs posted that said towing was a possibility and damage resulting thereof was his responsibility he really has a case to stand on. Even if those signs were present he would have an excellent shot at getting the damage to his car paid for. Those are the risks you run when you decide to tow cars.

Again I am with others and question why you want her to resign? Is she not performing her duties as a board member? Just because she is in disagreement about damage to her husband's car should not be grounds for a resignation. I would consult with your management company and see if agreeing to pay for the damages to this person's car is in everyone's best interest. It would be a lot cheaper than fighting a lawsuit.
SusanN
(Hawaii)

Posts:2


09/22/2006 9:34 AM  
thank you so much for the quick responses!! Yes, we do have signs posted as to the no parking rules, with a legal disclaimer. He was not singled out, he was parked in a no parking zone after hours. Our contract with the tow company is they can come on property after midnight and tow illegally parked cars, no board approval needed.
He admitted to parking illegally. Actually he again parked illegally and was towed away a second time by the city, and he accused them too of damages.
It is the constant harassment that is a worry. The lawyers of the management company did investigate the claim, at great length and decided he had no case with the managment company or the board, the car was check by a mechanic and it was in as good a running condition as any 1993 auto could be.
I guess I put it to mildly, he is agressive, abusive and somewhat frightening. His wife is following his lead and has added fuel to the fire in a big way. They wants to sue the board for the auto and the fact that he has not been able to go to work since it happened, yet the bus runs right in front of his unit, and they do have a second car.
Thank you for the advice. Being new I want to do the right thing and I so enjoy this board for all the helpfulness.
JosephW
(Michigan)

Posts:882


09/22/2006 8:54 PM  
Settling this would be nice, but caving in to threats may not be the best answer. First, the wife needs to recuse herself from any vote on this issue. If you discuss it with the asociation's attorney, she needs to be excused from the meeting. She has a conflict of interest on this issue. But that doesn't mean she should or has to resign.

From your description it was handled correctly. Your association attorney may obtain an injuction prohibiting them from talking to or approachng you or other individuakl board members about this issue, forcing all communication to be in writing and addressed to the board a a whole. If the confrontations are directed at individuals, and there is cause to believe it could turn violent, then a personal protection order could also be obtained, but hopefully it won't go this far. From your description it could be that he's just looking for some easy settlement money.

Maybe because it's late Friday night and I'm tired and crotchety, but if you feel you've done everything you can to make sure the association did what it was supposed to do, and didn't do anything you weren't supposed to do, then at the next board meeting, I'd move to close the issue and tell the wife that if they want to take it any farther, have their attorney contact the association attorney. It sounds like you've already spent a great deal of time on it, what more can you do?

Joe

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ReneeD
(Illinois)

Posts:201


09/28/2006 10:12 AM  
William,

According to your reply above, I question whether our BOD even has the right to enforce this.
I checked our CCR's and it does not mention towing/fining of vehicles or giving our BOD the authority to do so either. Our BOD has decided to call these private roadways even though they are and have been cul-de-sacs for as long as I can remember. In the past the BOD only fined for violations(illegal parking). Now they've posted fine/tow signs, signed an agreement with our village police department and tow company respectively giving each the authority to ticket/remove any vehicles on our private roadways. Most recently, the BOD mailed an updated Rules and Regulations stating their intentions to adopt these two changes at our October meeting. Maybe I am missing something here but would the BOD have that much right to make changes like this without homeowner input first? -ReneeD
JosephW
(Michigan)

Posts:882


09/28/2006 5:49 PM  
Renee

Probably. If the roads are private, then the association is responsible for them and have the power to control how they are used. I'm going to assume the CC&R's give the board the right to adopt reasonable rules and regulations. The word "reasonable" is where the problems usually start, but that's what the board was elected to do. Much like the various governments, you might not like what they do, but they were elected to govern and their definition of "reasonable" usually has to apply until they are removed, replaced or the rules are changed.

Joe

Joseph West
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Community Associations Network, LLC
www.CommunityAssociations.net

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