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Subject: Homeowner being sued by NC HOA
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HowardC2
(North Carolina)

Posts:80


11/26/2014 3:33 PM  
I have just joined this forum. The main reason in doing so is because I am being sued and/or having a lien placed on my property by my HOA BOD. I have already met with a lawyer and we have constructed and mailed a letter to the HOA atty. I received a response this week that states that the HOA is going to proceed with the lien if I do not pay them the money they say I owe them.
I realize everyone that is in a bad situation with their HOA states it is the fault of the HOA and that they are blameless. It so happens in my case this is true. The HOA is saying that I owe them $13K for work that was done to fill in a sediment trap that was left by the developer. This sediment trap runs along my property as well as two other properties. There is a rather long and complicated history that has precedes this situation. I'll try to summarize by saying that I tried to beautify this sediment trap by cleaning it out,installing a pond liner and filling it so it would be a pond instead of a mosquito pit that holds water depending upon the rains and water table. I was notified at the very end of this project that the HOA had problems with me doing this and they issued a stop work order. I went back and forth with the HOA BOD about this for several month before I found a clause in out CRC documents that convinced me that I was indeed in the wrong. From that point forward I made it clear to the HOA BOD that I was in the wrong and that I would like to work things out. The HOA BOD gave me a list of things they wanted to have happen such as removing the liner and associated materials. In their words I was to, "return the pond to it's original condition". There were several other demands the HOA BOD made of me and we went back and forth with a few of their demands but in the end we were able to work things out and I was given a letter stating that the BOD thanked me for completing the job to their satisfaction. In addition to this letter I was told during our final meeting that this issue was behind me. At this meeting I was told that they had hired a contractor to fill this area in with dirt and I was asked to help the contractor by keeping the pond pumped out. I have a large pump and he had no other means available to keep it empty. I readily agreed to help keep the water out. I made a request that the contractor let me know when he would be working because my wife had just been diagnosed with breast cancer and I would be very busy with MD appointments. They expressed their sympathy and said we would work together as best as we could. Within the next two months the pond was filled in by this contractor. About 9 months later I received a letter from the HOA atty stating that I owed them $13K for this work. The letter was accompanied by two invoices from the contractor. The first was for the original estimate to do the job for $6K. The second invoice was for another $7K for additional fill dirt that was required above the original estimated amount. The letter from the atty stated that this amount was needed because I told the contractor that the pond was 4' deep at the far end and, according to the contractor, it was much deeper and he therefor needed this additional $7k worth of fill dirt to complete the job. Needless to say I was floored by this letter after knowing full well that I had met the requirements of the BOD in returning the pond back to it's original condition. I am one that takes responsibility for my mistakes and I was ignorant to the CRC clause that I was in violation of. I fully admitted this and worked with the BOD in order to make certain that they were satisfied. I must state now that I did not do everything the BOD asked me to initially do (one demand was that I write a letter stating that I would "be responsible for any future problems with the current condition of the pond" and that I would have this recorded with the county and have it run with my deed) however we worked through the things that I found unreasonable and the end result was one they found satisfactory. The idea that the BOD would hire a contractor for a certain amount and then pay him an additional amount of $1K more than twice the original estimate is troubling enough but to read that the contractor used information I supplied (which was totally accurate-I waded around in this puke pit several times and I knew exactly how deep it was) as an excuse as to why he underestimated the job is more troubling.
I originally thought this would be a shorter post but this is the bare minimum I thought would help illustrate the problem/issue.
I am completely lost and frustrated. I am being bullied by this BOD and I have bad feeling about the outcome. HOA's have such an incredible amount of power that I've read about but only now fully understand. As a homeowner I've come to learn the only way to deal with an injustice dealt by an HOA BOD is to spend ridiculous amounts of money in court and even then it is a gamble. When my atty met with me and I gave him my story along with documents supporting my claims he said e would be very surprised if the HOA atty didn't advise the BOD against pursuing the matter. The BOD has bottomless pockets and they have no one but themselves to answer to and this makes it nearly impossible to defend against.
In addition to the above problem(s) I have been stone walled by this BOD in my attempts to gain information that might help my case. As an example I requested the recorded audio from the closed BOD meeting and I was told I'd need to have an atty request these recordings. This is completely false but the BOD continually hides behind the, "attorney excuse" and this amounts to stone walling because they know most people are not going to want to spend $1k for two lawyers to go back and forth over some audio recordings of BOD meetings. This is just not how HOA BOD's are supposed to act. They have an incredible number of resources that thay can use to keep information from homeowners and homeowners have few, if any, resources available to help them penetrate the unjust walls that the BOD has around them.
Any help regarding my issue would be greatly appreciated. I know this is a large and complicated story with several considerations. I am more than willing to supply any additional information.
EmmaH1


Posts:0


11/26/2014 4:41 PM  
Howard,

I have a tremendous amount of empathy for you. It seems like it started out with you trying to make things better, sounds like the work you did must have taken a while, (why didn't they stop you earlier?) Your situation sounds like such a nightmare! Sounds like you are reasonable person accepting responsibility for your mistakes and you tried to make things right and were cooperative. Then with your wife's diagnosis those circumstances kept you from being there when that contractor was working (sounds like he may have taken advantage of the situation). Sounds like the HOA does not care if he took advantage because they were going to send the bill to you anyway. Which I think is very sad that people would take advantage of another person going through what you are. It is terrible that people would treat a fellow neighbor with such cold heartedness.

I think your attorney may be right that they won't take it to court, he may be just bluffing and trying to scare you/bully you into paying the full amount. I think HOA attorneys have a reputation for doing that. They sometimes threaten things because they know the homeowners pockets are not as deep as most HOAs pockets so the homeowner gives in right or wrong. Some HOA attorneys even encourage bullying because of that. I think the scariest part in your situation is them putting a lien on your home. That may happen. You need to try and work things out before its done. If they do it then you may have to be the one to bring it to court to fight it. (It stinks but its true)

You have a real HOA nightmare on your hands. (I have one of my own but yours trumps mine by a mile).

I hope that posters here can give you some good opinions and advice and maybe share past experiences that may help you out. I wish I had some solid advice for you. I wish you the best outcome. I hope your HOA uses their hearts a little in this situation and not just rules and procedures and HOA attorney advice.

p.s. I think someone should have been communicating with you that contractor that doubled the original price, not just after the fact. I think that they should share some of the blame for that.)
TimB4
(Tennessee)

Posts:17830


11/26/2014 5:00 PM  
Howard,

I am not an attorney and I do not work in the legal profession.

The best thing I can say is to gather as much documentation on the whole thing that you can. These would include copies of Association minutes, copies of communications between you, the Association and anyone else involved in the issue (letters, e-mails, etc.) and make sure that your attorney has them. Also see if you can get statements from those who sat on the Board at the time you were told the issue was closed.

The other thing is that, since it sounds like you may be headed toward litigation, refrain from giving specifics about the case on forums like this. They are considered public and something you innocently post here (or elsewhere) could cause you problems if it goes to litigation.

You have an attorney. If you trust the attorney, follow their advice. If you have concerns, seek a second opinion from another attorney.

To me, this issues sounds like a contract dispute (although the Association likely sees it as a collection issue). Therefore, you may need an attorney more versed in contract law than property or HOA law.


I wish you luck.
LarryB13
(Arizona)

Posts:4099


11/26/2014 7:02 PM  
Howard,

My first take on this is that if the HOA said in writing that you had restored the sediment trap to its original condition then there is no basis for assessing only you for the costs of having a contractor fill it in. The cost is a common expense and not a personal one. Everyone in your association should be sharing in the costs.

Could you explain a bit more about what this sediment trap is? I am not familiar with the term. What is it supposed to do? Why did the HOA decide to fill it in? And why did they choose to do that after demanding that you restore it to its original state and acknowledging that you had done so?

To me, this sediment trap sounds like something that was installed to benefit the entire community and it just happens to be located on your lot. That does not make it your personal responsibility. I would assume that the developer installed the sediment trap as a condition of obtaining building permits as developers are not known for building things they don't have to. I would also assume that there was an engineer involved somewhere in the design and permit process.

This leads to the questions about permits, plans, and engineers. If this sediment trap was a requirement imposed by a state or local agency then it would be fair to question under what authority the HOA filled it in. Since the HOA says the contractor relied on your word it is safe to assume that no engineer was involved. Have you checked to see if any permits were issued for the work that was done?

You might discuss with your attorney the possibility of filing a cross-complaint naming all the other homeowners. As I said above this sounds like a common element and a common responsibility to be shared among all owners. It would be messy, for sure, but your BOD would then have to explain to every homeowner just why they are going after just one owner for a common expense.

EmmaH1


Posts:0


11/26/2014 8:14 PM  

Howard you just got some SUPER advice and pointers from Larry and Tim.

(I hope you keep us posted on what happens)
TimB4
(Tennessee)

Posts:17830


11/26/2014 8:36 PM  
Larry,

It sounds like it's part of a storm water management system.

It is highly possible, as you pointed out, that by filling the retention pond (sediment trap) in, the Association violated EPA regulations. I wonder who the Association will bill if the EPA, or the State/County equivalent, makes them restore it to it's original condition.

Here is some information:


N.C. Department of Environment and Natural Resources webpage

Maintenance of Stormwater Wetlands and Wet Ponds a pdf document from North Carolina State University.

Per that paper:

Wet ponds are typically much deeper than stormwater wetlands— their average depth ranges from 4 to 8 feet. They are designed so that most of the pond is open water. Wet ponds are the most common stormwater management practice in North Carolina and have been constructed since the 1970s in some parts of the state.
BobD4
(up north)

Posts:956


11/26/2014 11:27 PM  
Despite several thousand words of text, Howard C2 does not state whether the sediment trap is within common land or his own unit boundary.

But maybe such is irrelevant. He did his prior diligence AFTER the changes instead of before, commendably recognizes his error, and has reached a remedial agreement for restoration. But apparently he has not performed what the HOA or condo corp or its professional whatever considers lawful restoration which may trigger a duty by the HOA.

Refusing to pay to restore to HOA specs, he now faces what some would call a charge-back and subsequent lien. There is presumably a wider public good in proper restoration that could be determined by an engineering skillset.

Exactly how does this scenario differ from sort of civil damage between neighbours, after which the damage causer agreed to restore the status quo but only on the damage-causers terms É eg I weakened your foundation but stuck a couple of 2 by 4s to prop it up.
JohnB26


Posts:0


11/27/2014 5:52 AM  
... I was given a letter stating that the BOD thanked me for completing the job to their satisfaction.


DONE ... let your attorney handle the issue
EmmaH1


Posts:0


11/27/2014 11:02 AM  
I think JohnB is correct. That letter should be proof enough.

You said you did not sign and record that other statement/commitment they had asked you to. Despite that they still thanked you and said they were satisfied.

I second JohnB's opionio.
EmmaH1


Posts:0


11/27/2014 11:03 AM  
oops, opinion
LarryB13
(Arizona)

Posts:4099


11/27/2014 11:13 AM  
An additional thought:

If the sediment trap is required by any law, ordinance, or contract with a government agency destroying it by filling it in would be contrary to public policy.

Directors normally cannot be held personally liable so long as their actions are within the realm of what a reasonable person in a similar position would do.

By definition, a reasonable person does not violate public policy. Therefore, the directors could be held personally liable for all costs associated with filling in the sediment trap and for all costs that will arise in restoring it to its original condition.

EmmaH1


Posts:0


11/27/2014 11:21 AM  

ooooh! that is another really good point, Larry!
HowardC2
(North Carolina)

Posts:80


11/30/2014 5:32 AM  
Posted By EmmaH1 on 11/26/2014 4:41 PM
Howard,

I have a tremendous amount of empathy for you. It seems like it started out with you trying to make things better, sounds like the work you did must have taken a while, (why didn't they stop you earlier?) Your situation sounds like such a nightmare! Sounds like you are reasonable person accepting responsibility for your mistakes and you tried to make things right and were cooperative. Then with your wife's diagnosis those circumstances kept you from being there when that contractor was working (sounds like he may have taken advantage of the situation). Sounds like the HOA does not care if he took advantage because they were going to send the bill to you anyway. Which I think is very sad that people would take advantage of another person going through what you are. It is terrible that people would treat a fellow neighbor with such cold heartedness.

I think your attorney may be right that they won't take it to court, he may be just bluffing and trying to scare you/bully you into paying the full amount. I think HOA attorneys have a reputation for doing that. They sometimes threaten things because they know the homeowners pockets are not as deep as most HOAs pockets so the homeowner gives in right or wrong. Some HOA attorneys even encourage bullying because of that. I think the scariest part in your situation is them putting a lien on your home. That may happen. You need to try and work things out before its done. If they do it then you may have to be the one to bring it to court to fight it. (It stinks but its true)

You have a real HOA nightmare on your hands. (I have one of my own but yours trumps mine by a mile).

I hope that posters here can give you some good opinions and advice and maybe share past experiences that may help you out. I wish I had some solid advice for you. I wish you the best outcome. I hope your HOA uses their hearts a little in this situation and not just rules and procedures and HOA attorney advice.

p.s. I think someone should have been communicating with you that contractor that doubled the original price, not just after the fact. I think that they should share some of the blame for that.)






Thanks for all the great advice everyone. I'll submit a more comprehensive response when I can use my laptop. I've been without Internet access for the last several days.
Yes, a nightmare is a mild description of what's been going with my hoa bod. To clarify, I've already hired a lawyer and paid him $700.00 to construct and mail a letter to the hoa bod. The response from the hoa bod atty came last week. My atty was surprised that the BOD didn't drop the issue - he also felt it was a fishing expedition but obviously they feel I'll either just hand over the cash or pay an atty to fight their claim in court. This is a perfect example for how a bod can bully a homeowner. Typically a homeowner will, "do the math" and realize that the money it will cost to litigate their claim could run into tens of thousands and no matter how obvious the evidence is in their favor a judge may rule in favor of the hoa. It is my understanding the courts in NC are very hoa friendly and claims won by homeowners are very rare. I am trying to find any way to fight this other than court. If I end up fighting this in court it will be me before the judge because I can't afford an atty to litigate the case.
There is another tidbit that I found interesting to while looking at the minutes of the meeting of the BOD closed sessions. These minutes are pitifully brief and inadequate hence the reason I'm seeking the recorded minutes. Still in all I found that there was a motion made by the BOD president, "to charge Mr. (me) for the cost of filling in the pond". This is a clear indication that the BOD decided to charge me well after the work I did to satisfy their demands to return the pond to its original condition was done to their satisfaction. Otherwise the motion would have been made to collect the cost of the work done, not to charge me for it. In other words the BOD, after making and passing the motion as new business, separated the previous situation from the decision to bill me. If the BOD had the idea all along that they were going to bill me even after telling me I was done then there would have been no need for a motion and the BOD would have simply addressed the charge by saying, "mail Mr. Me a bill for the charge for filling in the pond" something to that effect and it would have been discussed while they were going over "old business".
In regard to any official entity/authority having jurisdiction over the disposition of storm water runoff and/or the disposition the of structures required to mitigate sediment from fouling sensitive creeks, rivers, etc there is no concern. I personally met with NC DENR about the pond twice to make sure I was not getting into a bad situation with them or any other government environmental department. One agent actually came to the site and the resulting opinion was that the pond was not able to impede and water run off. Even more importantly DENR stated that they have absolutely no ability to go around inspecting these types of structures. In addition this is a private community and the only way they would be able to get involved was if someone claimed there was sediment entering the waters down stream (way down stream) from this pond. The area where the pond was does not dump into any stream if it overflowed during a catastrophic flood, it overflows into 8 acres of designated wetlands. Lastly DENR told me and emailed me their assessment that they have no jurisdiction over this area and they know of no current division or department that does. They said this was a temporary sediment trap for handling sediment while roads were cut in and unpaved. Once paved they could be abandoned and left alone or filled in so long as the fill did not impede flood water. If it did they couldn't do anything about it anyway without a complaint and lengthy investigation which, they said, was not realistic consider g the small scope of this pond. BTW the hoa bod also inquired with DENR and DENR basically said they have no grounds to stand on if they were trying to get DENR to twist my arm.
Again I'll answer all questions when I can use my computer. Smart phones are great but not for adequately addressing the issue here.
Thanks to all.
HowardC2
(North Carolina)

Posts:80


11/30/2014 4:58 PM  
Posted By EmmaH1 on 11/26/2014 4:41 PM
Howard,

I have a tremendous amount of empathy for you. It seems like it started out with you trying to make things better, sounds like the work you did must have taken a while, (why didn't they stop you earlier?) Your situation sounds like such a nightmare! Sounds like you are reasonable person accepting responsibility for your mistakes and you tried to make things right and were cooperative. Then with your wife's diagnosis those circumstances kept you from being there when that contractor was working (sounds like he may have taken advantage of the situation). Sounds like the HOA does not care if he took advantage because they were going to send the bill to you anyway. Which I think is very sad that people would take advantage of another person going through what you are. It is terrible that people would treat a fellow neighbor with such cold heartedness.

Thanks - I was indeed trying to make things better. The contractor was not trying to make life difficult for me. He was doing everything through the HOA BOD and dealt only with them throughout the project.

I think your attorney may be right that they won't take it to court, he may be just bluffing and trying to scare you/bully you into paying the full amount. I think HOA attorneys have a reputation for doing that. They sometimes threaten things because they know the homeowners pockets are not as deep as most HOAs pockets so the homeowner gives in right or wrong. Some HOA attorneys even encourage bullying because of that. I think the scariest part in your situation is them putting a lien on your home. That may happen. You need to try and work things out before its done. If they do it then you may have to be the one to bring it to court to fight it. (It stinks but its true)

Oh-they aren't bluffing. I got news that they are going to place a lien on my home. The letter my atty sent them didn't seem to make any difference. They have deep pockets-I don't.

You have a real HOA nightmare on your hands. (I have one of my own but yours trumps mine by a mile).

I hope that posters here can give you some good opinions and advice and maybe share past experiences that may help you out. I wish I had some solid advice for you. I wish you the best outcome. I hope your HOA uses their hearts a little in this situation and not just rules and procedures and HOA attorney advice.

p.s. I think someone should have been communicating with you that contractor that doubled the original price, not just after the fact. I think that they should share some of the blame for that.)



JohnC46
(South Carolina)

Posts:11638


11/30/2014 5:19 PM  
Howard

Might I be as bold as to suggest you learn to use paragraphs (the ENTER key) on your computer. Would make your posts much easier to read. As it is, you being right or wrong matters little when it hurts my eyes to read your posts.

Thanks

NpS
(Pennsylvania)

Posts:4216


11/30/2014 10:29 PM  
Posted By HowardC2 on 11/26/2014 3:33 PM
I must state now that I did not do everything the BOD asked me to initially do (one demand was that I write a letter stating that I would "be responsible for any future problems with the current condition of the pond" and that I would have this recorded with the county and have it run with my deed) however we worked through the things that I found unreasonable and the end result was one they found satisfactory.




Was the board's demand in writing or verbal? When you say they found the end result satisfactory, are you referring to to the letter of satisfaction that they sent you?

Posted By HowardC2 on 11/26/2014 3:33 PM
I have been stone walled by this BOD in my attempts to gain information that might help my case. As an example I requested the recorded audio from the closed BOD meeting and I was told I'd need to have an atty request these recordings.




Nothing unusual in this if you mentioned that you were considering bringing a lawyer into the picture.

Posted By HowardC2 on 11/30/2014 5:32 AM
there was a motion made by the BOD president, "to charge Mr. (me) for the cost of filling in the pond". This is a clear indication that the BOD decided to charge me well after the work I did to satisfy their demands to return the pond to its original condition was done to their satisfaction.




When was the work done? When did you receive the satisfaction letter? When was this motion made and passed?

Posted By HowardC2 on 11/30/2014 5:32 AM
the hoa bod also inquired with DENR and DENR basically said they have no grounds to stand on if they were trying to get DENR to twist my arm.




When did the dialog between the board and DENR occur? is any of it in writing?

Also, what happened to the similar space behind your two neighbors? Did the contractor do work there as well? Were they billed?


Sikubali jukumu. Read all posts at your own risk.
HowardC2
(North Carolina)

Posts:80


12/01/2014 4:38 AM  
Posted By NpS on 11/30/2014 10:29 PM
Posted By HowardC2 on 11/26/2014 3:33 PM
I must state now that I did not do everything the BOD asked me to initially do (one demand was that I write a letter stating that I would "be responsible for any future problems with the current condition of the pond" and that I would have this recorded with the county and have it run with my deed) however we worked through the things that I found unreasonable and the end result was one they found satisfactory.




Was the board's demand in writing or verbal? When you say they found the end result satisfactory, are you referring to to the letter of satisfaction that they sent you?

Posted By HowardC2 on 11/26/2014 3:33 PM
I have been stone walled by this BOD in my attempts to gain information that might help my case. As an example I requested the recorded audio from the closed BOD meeting and I was told I'd need to have an atty request these recordings.




Nothing unusual in this if you mentioned that you were considering bringing a lawyer into the picture.

Posted By HowardC2 on 11/30/2014 5:32 AM
there was a motion made by the BOD president, "to charge Mr. (me) for the cost of filling in the pond". This is a clear indication that the BOD decided to charge me well after the work I did to satisfy their demands to return the pond to its original condition was done to their satisfaction.




When was the work done? When did you receive the satisfaction letter? When was this motion made and passed?

Posted By HowardC2 on 11/30/2014 5:32 AM
the hoa bod also inquired with DENR and DENR basically said they have no grounds to stand on if they were trying to get DENR to twist my arm.




When did the dialog between the board and DENR occur? is any of it in writing?

Also, what happened to the similar space behind your two neighbors? Did the contractor do work there as well? Were they billed?





I will again have to wait until I get to my laptop to answer your questions. I am finding it extremely cumbersome to use this site via my smart phone. I cannot figure out how to use html "quote" command and/or copy and paste pertinent information.
To the poster with the sensitive eyes I'm sorry for the paragraph issue. When I figure out how to better navigate the forum so that I may better present my replies I'll get better. If your eyes hurt I suggest you avoid viewing the thread. Thanks
EmmaH1


Posts:0


12/01/2014 5:46 AM  
Yeah JohnC,
You need to pay attention Howard already apologized for having to use his phone and not his computer. I understood all of what he said regardless. Read all the posts before you start to pick on people next time.
Boo You!
MelissaP1
(Alabama)

Posts:10576


12/01/2014 5:55 AM  
Boo you JohnC! Boo you! What up with your fact reading? Geez! Are you ready to have that Margherita now and run off to Mexico with me yet??? I am waiting.... :-)

Former HOA President
BobD4
(up north)

Posts:956


12/01/2014 9:28 AM  
With all the typing & hassle in this topic, poor Howard C2 (N Carolina) could have paved the ponds with solid gold.

But better to take it seriously if he recalls this one from his own state in 2012 :

North Carolina Court invalidates $ 489,000 in HOA fines ( $ 400 per day ) against detached homeowner after she installed - and eventually complied with orders to remove - : French drains to rectify surface water flooding . After 10 years of litigation HOA fines are struck down after discovery that St Ives HOA in Mint Hill had (through its architecture committee) secretly approved the drains “Woman fights HOA to keep home after $489K of invalid fines” ( wcnc.com July 27/12 NewsChannel 36 online ) http://www.wcnc.com/news/editors-pick/Woman-fights-HOA-to-keep-house-over-invalid-fines-164061896.html
HowardC2
(North Carolina)

Posts:80


12/01/2014 4:15 PM  
Posted By NpS on 11/30/2014 10:29 PM
Was the board's demand in writing or verbal? When you say they found the end result satisfactory, are you referring to to the letter of satisfaction that they sent you?


The BOD stated verbally that I satisfied their requests at our last meeting. They also sent me a letter or email which I have which states the same. There are also minutes from a meeting that state that I satisfied their requests and that they thanked me.



Nothing unusual in this if you mentioned that you were considering bringing a lawyer into the picture.
.


Perhaps not but still extremely frustrating to say the least. I actually posed the question about getting the recorded minutes to a friend that is serving on the BOD temporarily. He was not on the board when the whole pond issue was going on



When was the work done? When did you receive the satisfaction letter? When was this motion made and passed?


I can't give exact dates for the above three questions but the work I did to beautify the pond was roughly 1-2012 to 5-2012. I was 95% finished when the BOD came and told me to stop. At this point we went back and forth for another 2-3 months before I admitted being at fault and it took me at least another month to finish restoring the pond "back to it's original condition". It took another month for the BOD to meet with me to give me the good news that I had done what they wanted and that the issue was put to bed. I'd say the motion that I was to be charged for the work done by the contractor was made by the BOD 3-4 months later. This long delay was one reason I was floored when I received the letter. I would have thought that the BOD would have sent me an invoice shortly after the work they contracted to be done was complete. I actually never received any invoice, or indication that I was responsible, for the work that the contractor did in filling up the pond area with fill dirt.




When did the dialog between the board and DENR occur? is any of it in writing?

Also, what happened to the similar space behind your two neighbors? Did the contractor do work there as well? Were they billed?


I am not sure when the BOD spoke with DENR but I know it was prior to me speaking with them. I remember hearing one of the engineers that I met with at the DENR office talking to the other engineer about an inquiry made for the same project that I was there for and this inquiry came from my BOD. He plainly told me what he told my BOD. He seemed miffed that they were trying to use him and/or his department as a way to get something on me. That's neither here nor there but it is something I recall him alluding to. I'm not at all about drama and I am not going to add anything that might seems as if I am spinning the story in my favor. I am trying my very best to strip the whole issue and order of event down to bare facts with no gray areas (I personally don't believe in "gray areas" anyway).
I have so many ways that I can prove this BOD is completely off base with charging me for the work they contracted to do but I am finding out more every day that I can have all these facts and still get railroaded due to the way that HOA BOD's are shielded from the laws that every other form of government has to abide by. This is a very scary thing when a group of people has the power to damage someone knowing full well that the only thing standing between them getting what they want and the homeowners ability to fight them is a costly court battle. There is absolutely no reason this BOD should be seeking these charges from me. It's a random pot shot and they can pull it off unless I find a way to fight them that doesn't make me broke.

On another somewhat related note, my wife decided to go to the last meeting. It was out annual meeting and it was the third or fourth attempt to get a quorum as it was our annual meeting at which the budget is approved and the election is held. My wife is very non confrontational and gets upset very easily in confrontational situations. She told me she was going to go and talk to the BOD prior to the meeting just, "to meet them and show them who she is etc" I was not enthused and I told her I thought she might end up getting upset while talking to them. She said she knew she would but had to get it off her chest. Like any good husband of 30+ years I said, "yes Dear". She told me about her encounter. She approached the BOD members as they were getting ready for the meeting. A couple of them greeted her as if nothing was happening and one started off by saying, "oh your hair looks so cute" commenting on her 3/4" long post chemotherapy hair growth. My wife said she wanted to just meet the BOD and they finally graced her with their presence as a group. As she was introducing herself one member had a homeowner come up to him and ask a question. This BOD member just turned around. looked away, and started talking to the homeowner. My wife interrupted him and told him she was talking to him and that he was rude in doing what he did. He said he was sorry-HA! I knew who it was before she told me his name. He is one of the most pompous, irritating self important people I've ever met and I've met a few. The group of BOD members heard my wife introduce herself and as soon as my wife mentioned that she was very upset about the bill they sent the BOD members all said, "oh we can't talk about that" as if they had been given legal counsel that anything they might say could sway the outcome of some highly publicized, pivotal national law suit that everyone in America was waiting to hear the outcome for. It is complete BS that, "they can't say anything". There is no litigation taking place. Their claim is that they can't talk about the issue is just another example of their spineless make up. They hide behind false protection because they know that a mere homeowner cannot penetrate their veil of deception again, without spending money to get an atty involved.


Thanks for the advice and patience. Please keep it coming.





NpS
(Pennsylvania)

Posts:4216


12/01/2014 5:24 PM  
Posted By HowardC2 on 12/01/2014 4:15 PM
Posted By NpS on 11/30/2014 10:29 PM
Also, what happened to the similar space behind your two neighbors? Did the contractor do work there as well? Were they billed?







??

Sikubali jukumu. Read all posts at your own risk.
JanetB2
(Colorado)

Posts:4211


12/01/2014 6:30 PM  
Check with your local government Planning Dept to see if sediment pond was required to be built for the subdivision. The local government may be able to help solve this issue. As was common area and you put back to same condition, for BOD to choose to fill in would be common expense ... If the BOD did not make mistake of filling in part of a storm drainage system. If they did ... Well their bad to make major changes to common areas if not in essence required maintenance they should have received member input and approval.
MarkM31


Posts:0


12/01/2014 7:31 PM  
Posted By JanetB2 on 12/01/2014 6:30 PM
Check with your local government Planning Dept to see if sediment pond was required to be built for the subdivision. The local government may be able to help solve this issue.




Asked and answered several posts ago.
JanetB2
(Colorado)

Posts:4211


12/01/2014 8:04 PM  
Posted By MarkM31 on 12/01/2014 7:31 PM
Posted By JanetB2 on 12/01/2014 6:30 PM
Check with your local government Planning Dept to see if sediment pond was required to be built for the subdivision. The local government may be able to help solve this issue.


Asked and answered several posts ago.



OP posted regarding DENR. The State Environmental and Local Government are two separate entities with different codes and regulations. In my area the County or City also regulates these requirements, if they are needed in some subdivisions.
HowardC2
(North Carolina)

Posts:80


12/02/2014 4:43 AM  
Thanks for the replies. There are no state, county and/or federal agencies that would or could have any interest or concern regarding this issue. I checked into this thoroughly and the BOD did as well in an attempt to snag me. At this point th hoa bod would be responsible if any agency was to somehow appear and have a beef. The BOD has completely filled the area in with no input or association with me or the two adjoining lots.
As for the adjoining two lots they are shown on the recorded Plat maps having there rear lot portions being within the drainage easement that the original sediment trap occupied. The map is incorrect to a large degree and a recent survey showed the pond was entirely within my lot boundary line. Now that it is filled it has expanded to reach theirs as well. Neither neighbor has been billed for the work. It's all on me.
NpS
(Pennsylvania)

Posts:4216


12/02/2014 5:54 AM  
Posted By HowardC2 on 12/02/2014 4:43 AM
Thanks for the replies. There are no state, county and/or federal agencies that would or could have any interest or concern regarding this issue. I checked into this thoroughly and the BOD did as well in an attempt to snag me. At this point th hoa bod would be responsible if any agency was to somehow appear and have a beef. The BOD has completely filled the area in with no input or association with me or the two adjoining lots.
As for the adjoining two lots they are shown on the recorded Plat maps having there rear lot portions being within the drainage easement that the original sediment trap occupied. The map is incorrect to a large degree and a recent survey showed the pond was entirely within my lot boundary line. Now that it is filled it has expanded to reach theirs as well. Neither neighbor has been billed for the work. It's all on me.




A couple of thoughts:

1. Accord & Satisfaction is a straightforward legal concept of contract law. One or both parties believe that Agreement 1 has been breached. The parties mutually agree to Agreement 2 instead. A performs under Agreement 2 to B's satisfaction. B cannot come back to A with demands from Agreement 1. Agreement 2 is the Accord. The performance by A and acceptance by B is the Satisfaction. In your case, your breach would be your violation of the CC&Rs that you admitted. Under Accord & Satisfaction, the HOA would not be able to point to any obligation in your CC&Rs that conflicts with the A&S that the board agreed to. If they said your obligation was done, it was done.

2. The HOA improperly billed you for work done on your 2 neighbor's property. It makes no difference that the original sediment trap was on your property.

Sikubali jukumu. Read all posts at your own risk.
JohnB26


Posts:0


12/02/2014 6:54 AM  
One agent actually came to the site and the resulting opinion was that the pond was not able to impede and water run off.


You and the HOA are in deep deep toric ka-ka:

The PURPOSE of the pond IS/SHOIULD BE to impede the water run off and act as a sediment trap.

The fact that you didn't like it and the BOD was 'clueless' does NOT change the requirement for said "engineered storm water treatment/retention utility" which should NOT have been modified without county, state, and possibly federal permits.

Y'all need an engineer to ascertain the status of the 'replacement' pond.

ps. (not an attorney)

YOU modified a REQUIRED storm water utility

the bod ERRONEOUSLY accepted your fix

now the state is involved and REQUIRES a proper EXPENSIVE repair

YOU are ON THE HOOK because YOU violated YOUR covenant(s) originally

? what part of 'binding contract' did you not understand ?

? did you not read what you signed off ?

CAVEAT EMPTOR
TimB4
(Tennessee)

Posts:17830


12/02/2014 7:24 AM  
John,

Yes, the OP initially changed the pond. However, he returned it to the initial state it was in prior to him making the changes. That was done at his expense and the Board signed off on it.

Therefore, what you are saying is correct, he was on the hook and paid the price.

This is a new issue where the Board took action to fill in the pond after it was returned to it's original state (which the Board insisted the Homeowner do).


MelissaP1
(Alabama)

Posts:10576


12/02/2014 8:45 AM  
I am seeing this thing going to court and it is best not to discuss it anymore with the board until that time comes. That does not mean you should not have access to their proof. Which I would call their lawyer if you are representing yourself. There is a period called "Discovery" where both sides have to give each other their "proof" to make their cases. You may reduce your cost and hire an attorney for this part of your case but represent yourself in court itself.

I would also consider filing a counter-suit for legal expenses or other related expenses. Why not? Does not mean you will win but atleast you can file to get your expenses reimbursed.

I can't really determine if your HOA has a case or not. That's up to the court to decide. However, what we can do is provide some help when you get there. Filing a counter-suit may be helpful in your case as it can be for any expenses you incur. The court decides who pays for the legal expenses but you have to ask for that to be determined. If you don't take this step, you could be on the hook for those expenses too.

My recommendation is also read your documents on this matter and have them available. Atleast have a letter from your HOA putting the wording from the documents that gives them the right to pursue these actions. Our HOA has the right to remove a violation and send the owner the bill for the cost of doing so. Refuse to pay up, then we can lien for that amount. Which is the logic they are using in this lawsuit. They can also sue instead for this expense as well. A lawsuit is much better for you ironically than a lien. It won't prevent you from selling your home like a lien would.

Make sure they do not have your social security number. They do not need that information and them not having it will protect you to some degree. They should only have your name and address of your HOA home. This is important because you don't want this to damage your credit until the case is settled.

Good luck on this. My opinion on the issue and how I would handle it isn't how this is being handled. All I can do is give you a few tips to help you protect yourself.

Former HOA President
HowardC2
(North Carolina)

Posts:80


12/02/2014 4:05 PM  
Posted By NpS on 12/02/2014 5:54 AM
Posted By HowardC2 on 12/02/2014 4:43 AM
Thanks for the replies. There are no state, county and/or federal agencies that would or could have any interest or concern regarding this issue. I checked into this thoroughly and the BOD did as well in an attempt to snag me. At this point th hoa bod would be responsible if any agency was to somehow appear and have a beef. The BOD has completely filled the area in with no input or association with me or the two adjoining lots.
As for the adjoining two lots they are shown on the recorded Plat maps having there rear lot portions being within the drainage easement that the original sediment trap occupied. The map is incorrect to a large degree and a recent survey showed the pond was entirely within my lot boundary line. Now that it is filled it has expanded to reach theirs as well. Neither neighbor has been billed for the work. It's all on me.


A couple of thoughts:
1. Accord & Satisfaction is a straightforward legal concept of contract law. One or both parties believe that Agreement 1 has been breached. The parties mutually agree to Agreement 2 instead. A performs under Agreement 2 to B's satisfaction. B cannot come back to A with demands from Agreement 1. Agreement 2 is the Accord. The performance by A and acceptance by B is the Satisfaction. In your case, your breach would be your violation of the CC&Rs that you admitted. Under Accord & Satisfaction, the HOA would not be able to point to any obligation in your CC&Rs that conflicts with the A&S that the board agreed to. If they said your obligation was done, it was done.
2. The HOA improperly billed you for work done on your 2 neighbor's property. It makes no difference that the original sediment trap was on your property.




Thanks for this information. I'll mention it in my meeting with my atty tomorrow. The problem still comes back to being able to use the information you state. It has to be presented in court which =$$$. I am going to find out more about trying to represent myself but those age old words ring in my ears when I think about it. "A fool for an attorney..."

Posted By JohnB26 on 12/02/2014 6:54 AM
One agent actually came to the site and the resulting opinion was that the pond was not able to impede and water run off.

You and the HOA are in deep deep toric ka-ka:
The PURPOSE of the pond IS/SHOIULD BE to impede the water run off and act as a sediment trap.
The fact that you didn't like it and the BOD was 'clueless' does NOT change the requirement for said "engineered storm water treatment/retention utility" which should NOT have been modified without county, state, and possibly federal permits.
Y'all need an engineer to ascertain the status of the 'replacement' pond.
ps. (not an attorney)
YOU modified a REQUIRED storm water utility
the bod ERRONEOUSLY accepted your fix
now the state is involved and REQUIRES a proper EXPENSIVE repair
YOU are ON THE HOOK because YOU violated YOUR covenant(s) originally
? what part of 'binding contract' did you not understand ?
? did you not read what you signed off ?
CAVEAT EMPTOR




Given the fact that I've spoken with the people that have jurisdiction regarding such matters I have to respectfully disagree. The sediment trap was required during the development of the roads. Once the roads are paved and accepted by the county as being properly installed then these sediment traps are no longer a concern for any agency etc. Please believe me I did my homework regarding this matter and got this information straight from the horses mouths.
This is not a required storm water utility
The state is not involved.
I did violate the covenant and I worked with the HOA BOD to correct my violation and I was given approval of completion by the HOA BOD.
"binding contract"/? Not sure what you are referring to??
"read what I signed off"?? Again not sure what this is asking??
Thanks for the input.

Posted By TimB4 on 12/02/2014 7:24 AM
John,
Yes, the OP initially changed the pond. However, he returned it to the initial state it was in prior to him making the changes. That was done at his expense and the Board signed off on it.
Therefore, what you are saying is correct, he was on the hook and paid the price.
This is a new issue where the Board took action to fill in the pond after it was returned to it's original state (which the Board insisted the Homeowner do).




This is correct. Thanks

Posted By MelissaP1 on 12/02/2014 8:45 AM
I am seeing this thing going to court and it is best not to discuss it anymore with the board until that time comes. That does not mean you should not have access to their proof. Which I would call their lawyer if you are representing yourself. There is a period called "Discovery" where both sides have to give each other their "proof" to make their cases. You may reduce your cost and hire an attorney for this part of your case but represent yourself in court itself.
I would also consider filing a counter-suit for legal expenses or other related expenses. Why not? Does not mean you will win but atleast you can file to get your expenses reimbursed.
I can't really determine if your HOA has a case or not. That's up to the court to decide. However, what we can do is provide some help when you get there. Filing a counter-suit may be helpful in your case as it can be for any expenses you incur. The court decides who pays for the legal expenses but you have to ask for that to be determined. If you don't take this step, you could be on the hook for those expenses too.
My recommendation is also read your documents on this matter and have them available. Atleast have a letter from your HOA putting the wording from the documents that gives them the right to pursue these actions. Our HOA has the right to remove a violation and send the owner the bill for the cost of doing so. Refuse to pay up, then we can lien for that amount. Which is the logic they are using in this lawsuit. They can also sue instead for this expense as well. A lawsuit is much better for you ironically than a lien. It won't prevent you from selling your home like a lien would.
Make sure they do not have your social security number. They do not need that information and them not having it will protect you to some degree. They should only have your name and address of your HOA home. This is important because you don't want this to damage your credit until the case is settled.
Good luck on this. My opinion on the issue and how I would handle it isn't how this is being handled. All I can do is give you a few tips to help you protect yourself.





Thank you for this input. I have no current plans to speak with the board however my wife needed to and I was not about to try and talk her out of it. She is right about things 95% of the time. The other 5% of the time I am wrong .
I will also ask my atty about using the sentiment of the community to sway the BOD. I have read of others that were sued by their HOA and how they brought the issue(s) to the community with some success. I feel my fellow homeowners would not enjoy the way the board money for this pond fill in. We have several other issues where this particular BOD has spent money in ways that the overwhelming sense from the community is that they are wasteful and are not listening to the homeowners opinions. I could elaborate but will not do so at this time as it would serve no purpose here.
Thank You
NpS
(Pennsylvania)

Posts:4216


12/02/2014 5:07 PM  
Posted By HowardC2 on 12/02/2014 4:05 PM
I was not about to try and talk her out of it. She is right about things 95% of the time. The other 5% of the time I am wrong




Fabulous.

Sikubali jukumu. Read all posts at your own risk.
HowardC2
(North Carolina)

Posts:80


12/03/2014 4:39 AM  
Posted By MelissaP1 on 12/02/2014 8:45 AM
I am seeing this thing going to court and it is best not to discuss it anymore with the board until that time comes. That does not mean you should not have access to their proof. Which I would call their lawyer if you are representing yourself. There is a period called "Discovery" where both sides have to give each other their "proof" to make their cases. You may reduce your cost and hire an attorney for this part of your case but represent yourself in court itself.

I would also consider filing a counter-suit for legal expenses or other related expenses. Why not? Does not mean you will win but atleast you can file to get your expenses reimbursed.

I can't really determine if your HOA has a case or not. That's up to the court to decide. However, what we can do is provide some help when you get there. Filing a counter-suit may be helpful in your case as it can be for any expenses you incur. The court decides who pays for the legal expenses but you have to ask for that to be determined. If you don't take this step, you could be on the hook for those expenses too.

My recommendation is also read your documents on this matter and have them available. Atleast have a letter from your HOA putting the wording from the documents that gives them the right to pursue these actions. Our HOA has the right to remove a violation and send the owner the bill for the cost of doing so. Refuse to pay up, then we can lien for that amount. Which is the logic they are using in this lawsuit. They can also sue instead for this expense as well. A lawsuit is much better for you ironically than a lien. It won't prevent you from selling your home like a lien would.

Make sure they do not have your social security number. They do not need that information and them not having it will protect you to some degree. They should only have your name and address of your HOA home. This is important because you don't want this to damage your credit until the case is settled.

Good luck on this. My opinion on the issue and how I would handle it isn't how this is being handled. All I can do is give you a few tips to help you protect yourself.




Does your hoa send bills for this type of situation or do they automatically have an atty construct and send a letter? Isn't there a process for a dispute between the hoa and a homeowner that should be followed prior to the escalation to a lien being filed? I feel like there should have been some sort of dialogue between the BOD and myself. Not only prior to the atty letter I received but prior to the work getting contracted. I feel like the BOD should have told me from early on that they wanted the pond filled in and if I didn't do it then they would and then give me a bill (as they have done obviously).
The way I'm reading your post your hoa can make a ruling on a homeowner dispute, have the homeowner resolve the dispute by accepting the ruling and abiding by it, and then your bod can change their mind and demand more from the homeowner subsequently??
Thanks
NancyG3
(North Carolina)

Posts:342


12/03/2014 4:41 AM  
Howard: You wrote: I am going to find out more about trying to represent myself but those age old words ring in my ears when I think about it. "A fool for an attorney..."

Please do not try to represent yourself. I tried this and lost my case. If you go to small claims court I found out if the other party has a lawyer they usually win. The lawyer I went to before going to court told me I couldn't lose because of my proof. Well, guess what, he was wrong. Anyway your situation involves a lot more money than mine. It's difficult to win without an Attorney. Example, 2 years later my HOA sued me over the same situation and I had a lawyer and they didn't. The HOA lost. So please don't try to represent yourself.
MelissaP1
(Alabama)

Posts:10576


12/03/2014 8:00 AM  
Your HOA isn't handling this situation correctly overall. That is the major part of this situation. It is why your going to court. This would NOT have been the way we would have handled the situation at all.

For example in our HOA, you painted your house the wrong color. We have approved color palette. Prior to buying and painting you are to submit your color choice to the ACC (if existed) and/or the board for approval. If you do not do this and then paint the house bright purple outside the approved color palette, we can take action. That action would be to send you a letter notifying you of the violation and quoting the rule violated. We would give you the choice of correcting it on your own at your cost or for us to fix it at OUR cost. If we fix it at our cost, we get to choose the color and contractor. Plus we will send you the bill for this. If you refuse to pay, then we would send a certified letter with intention to lien. We would then lien if not paid in a set time.

Mind you we can not foreclose on you for this bill. It can only be a lien. It works more like a "fine". We had the power to fine but we needed a fine schedule with defined violation. Most HOA's do not have this. However, fines typically can't be used in the BASIS of foreclosure. Although a few states do tricky accounting applying you dues to the amount owed to make it look like not paying the dues. Unpaid dues can be the basis of foreclosure.

So no, your HOA is not handling this situation as it should. Instead, it's doing the lawsuit thing. A good sign your not dealing with and intellectual group of people. You can't stop it though. Just roll with it and bring it on at court.

Former HOA President
HowardC2
(North Carolina)

Posts:80


12/05/2014 2:51 PM  
I met with my lawyer on Wednesday. He told me that the response from the hoa atty was that there was no change in their position and they they were going to file suit against me. He went on to say we should try to settle for what he estimated the cost to fight the lawsuit against would be. He said he estimated the amount of time he would need to litigate the suit would end up being about 1/2 of what they are looking for from me. He is not "pro hoa" and has had several cases where he defended the homeowner in suits their hoa has brought against them.
I was extremely surprised that this was his position but the more he talked the more I became aware that there was a good chance that I could end up paying this bod. I was, and still am, amazed that this bod can extort money from me. My lawyer has seen this so many times that he can't really offer any way out other than to pay up.
I thought of an option and asked what he thought. I asked him to tell the BOD atty that I would like to meet with them in person to talk about the situation. I thought I had read that I am entitled to meet with an adjudicatory committee and that the state of NC passed a statute to this effect in order to encourage homeowners and hoa bod to work out problems with prior to proceeding with litigation. I know this procedure is not binding but I feel like the BOD was negligent in not offering me a mediation prior to filing a law suit. My lawyer thought this was a feasible option and sent an email to the hoa atty asking for a meeting. I don't expect them to take the meeting but I feel like I am absolutely entitled to speak with the BOD in front of a neutral party and get the opinion of this person. If they do not accept the meeting then I will find a way to bring the situation before the community and hopefully get enough people to see what this hoa is doing and how improper and unjust they are.
I really had hopes that the hoa atty would read what was in our letter to him and tell the hoa that they were out of order in charging me for the work that they ordered to have done. It is beyond my ability to comprehend how a group of people can take money from someone with absolutely no fear that they will have any chance of being called out on this bazaar behavior.
Thanks for listening.
EmmaH1


Posts:0


12/05/2014 3:09 PM  
HowardC,

I am so sorry, you must feel so frustrated. I does not seem fair at all.It really stinks that you would have to spend more to fight it, so they just get away with it. I hope you do gain support from other homeowners, let them know the story the way you let us, they should help and support you if they are good people. I would have no problem sticking my neck out for someone else because I know I would want someone to do the same for me.

I hope things turn around for you and that your wife stays well,

Emma

JanetB2
(Colorado)

Posts:4211


12/05/2014 6:09 PM  
I have couple of questions:
1). What is exact verbiage of section you supposedly initially violated when you cleaned up and made the pond.
2). You have stated this area is within your property line, yet HOA controls ... Why?
NpS
(Pennsylvania)

Posts:4216


12/05/2014 6:16 PM  
Posted By HowardC2 on 12/05/2014 2:51 PM
I feel like I am absolutely entitled to speak with the BOD in front of a neutral party and get the opinion of this person.




A friendly word of caution on your expectations about a neutral party's opinion:

1. Arbitration - If you want a neutral's opinion on who is right and who is wrong, arbitration is the way to go. The arbitrator's opinion can be binding or non-binding.

2. Mediation - If you want a neutral's opinion on how the two sides can reach a mutual settlement regardless of who was right or wrong, mediation is the way to go. The mediator's opinion is always non-binding.

3. Med-Arb - This is a hybrid form where the neutral mediates first, and if settlement is not reached, then arbitrates.

The questions on which format to use and whether an arbitrator's decision will be binding or non-binding are decided in advance. One reason for this is that people tend to disclose information differently to a neutral mediator and to a neutral arbitrator. In an arbitration, you will want to keep some information close to the vest because you want the arbitrator to decide in your favor. In a mediation, keeping your guard up is less likely to be a concern to you.

If you choose a neutral who was a former judge, you often wind up with an arbitration even if you seek a mediation. Most of them are so used to handing down decisions from the bench, that they really can't get out of that mode. So picking the right format and the right neutral will determine if you are going to get the kind of opinion that you seek.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4216


12/05/2014 6:43 PM  
Posted By JanetB2 on 12/05/2014 6:09 PM
You have stated this area is within your property line, yet HOA controls ... Why?




Not sure how it works in NC, but under PA statute, Common Elements consist of Common Facilities and Controlled Facilities. Common Facilities are owned by the HOA. Controlled Facilities are managed, controlled, or regulated by the HOA but not owned by the HOA. A Controlled Facility can be on a unit owner's property.

Our statute is the PA version of the Uniform Planned Community Act (UPCA), which I believe is where this division of Common Elements into Common Facilities and Controlled Facilities comes from. So if your state law is based on the UPCA, then you probably have a similar setup.

The UPCA in PA was enacted after our HOA was formed. So in our organizing docs, the provisions about Common Elements aren't designed to distinguish between rights and responsibilities regarding Common Facilities and Controlled Facilities. Under the UPCA, our HOA should have a bit more reach than it did before, but we've never had to test it. And as always, when you have two docs that don't exactly line up with each other, there are usually muddy areas. Most of our HOs are unaware that the UPCA could trump the language in our docs.




Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4216


12/05/2014 6:51 PM  
Posted By NpS on 12/05/2014 6:43 PM
Posted By JanetB2 on 12/05/2014 6:09 PM
You have stated this area is within your property line, yet HOA controls ... Why?




Not sure how it works in NC, but under PA statute, Common Elements consist of Common Facilities and Controlled Facilities. Common Facilities are owned by the HOA. Controlled Facilities are managed, controlled, or regulated by the HOA but not owned by the HOA. A Controlled Facility can be on a unit owner's property.

Our statute is the PA version of the Uniform Planned Community Act (UPCA), which I believe is where this division of Common Elements into Common Facilities and Controlled Facilities comes from. So if your state law is based on the UPCA, then you probably have a similar setup.

The UPCA in PA was enacted after our HOA was formed. So in our organizing docs, the provisions about Common Elements aren't designed to distinguish between rights and responsibilities regarding Common Facilities and Controlled Facilities. Under the UPCA, our HOA should have a bit more reach than it did before, but we've never had to test it. And as always, when you have two docs that don't exactly line up with each other, there are usually muddy areas. Most of our HOs are unaware that the UPCA could trump the language in our docs.





As far as I know, only the members of our Board know that the concept of Controlled Facilities is a part of our legal structure.

Sikubali jukumu. Read all posts at your own risk.
JanetB2
(Colorado)

Posts:4211


12/05/2014 9:24 PM  
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.
NancyG3
(North Carolina)

Posts:342


12/06/2014 3:38 AM  
Howard - In NC the Voluntary Prelitigation Mediation act House Bill 278 became effective 07/1/13. The General Assembly of NC enacted: Sect 1 Article 5 of Chapter 7A of the General Statutes was amended to add Prelitigation mediation of condominium and homeowners association disputes. Read all the bill to see if you want to go this way. Hope this helps.
NpS
(Pennsylvania)

Posts:4216


12/06/2014 6:54 AM  
Posted By JanetB2 on 12/05/2014 9:24 PM
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.




Hi Janet

As I mentioned in my post, I was not saying that PA law applies in NC. I was saying that for any state whose statute is based on the UPCA, there is probably a similar structure.

Anyway, I started a new post with this line of thought. I hope you will read it and add some comparisons to how the UCIOA is structured.

Thanks.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4216


12/06/2014 6:55 AM  
Posted By NpS on 12/06/2014 6:54 AM
Posted By JanetB2 on 12/05/2014 9:24 PM
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.




Hi Janet

As I mentioned in my post, I was not saying that PA law applies in NC. I was saying that for any state whose statute is based on the UPCA, there is probably a similar structure.

Anyway, I started a new post with this line of thought. I hope you will read it and add some comparisons to how the UCIOA is structured.

Thanks.




A new thread

Sikubali jukumu. Read all posts at your own risk.
HowardC2
(North Carolina)

Posts:80


12/07/2014 4:29 PM  
Thanks for all the replies and advice. I have not yet heard back about the request I made to meet with the BOD.
Can someone tell me if there is an easy way to multi-quote? I've been having to open the site in a new page, copy and past to the first page to quote replies?
Thanks


Posted By JanetB2 on 12/05/2014 6:09 PM
I have couple of questions:
1). What is exact verbiage of section you supposedly initially violated when you cleaned up and made the pond.
2). You have stated this area is within your property line, yet HOA controls ... Why?




I do not have the exact verbage that the BOD referenced. I did have an email that sited the page and paragraph however I deleted almost every email I had about the issue. That is how certain I was that the issue was put to bed. Had I any inkling whatsoever that I might need the emails for future reference I, of course, would have saved them. The part of the RC they sited stated that no one can "place anything in a drainage easement". I'll look for the section but it will be tough to do as all I have is the copy of the original so I'll be doing it manually.
Needless to say the BOD "placed something in a drainage easement" to the tune of about 100 truck loads of nasty fill dirt. I guess they are allowed to break any and every rule and, as a group, can totally disregard the content of the RC documents.
The area occupies part of my lot as well as part of two other lots. My lawyer asked why the other lot owners have not gotten a bill for the fill and I said I didn't know.
I don't know if the HOA "controls" this drainage easement or maybe controls isn't the right word. The HOA has the right to use any easement regardless of what type of easement it is. At least that is how I understand it.


Posted By JanetB2 on 12/05/2014 9:24 PM
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.




Is there something in the content of any of my posts that don't make sense or is there anything I can do to help you? I appreciate the help and I want to make sure everyone here knows I am being completely forthright in my statements.
One thing that keeps coming around when I talk with my wife and even my lawyer is the original issue abou the pond/sediment trap/area. The original dispute I had with the BOD (or they had with me??) was completely settled. I admitted being wrong and, after a few weeks, I made my wrong right in the eyes of the HOA BOD. For this reason I feel like the original issue and this bill are two completely separate things. I know this can't be the way it is in the eyes of the BOD but I've never been made aware of this fact directly from them. In a nutshell I received the blessing by the BOD that I had met their requirements to right my wrong. Subsequent to that the BOD filled in the area and decided to make me pay for it. That's the power and HOA has .They can arbitrarily do anything they want and get away with it unless the party they are targeting has pockets deep enough to litigate their claim(s). Even as I write this I get a feeling that, I would think anyway, that is similar to one I would get if I came across a Yeti, mermaid, unicorn etc. I'm making light of it and I shouldn't because I've been getting more and more of a sinking feeling that I am going to have to pay a lot this extortion money.

Posted By NancyG3 on 12/06/2014 3:38 AM
Howard - In NC the Voluntary Prelitigation Mediation act House Bill 278 became effective 07/1/13. The General Assembly of NC enacted: Sect 1 Article 5 of Chapter 7A of the General Statutes was amended to add Prelitigation mediation of condominium and homeowners association disputes. Read all the bill to see if you want to go this way. Hope this helps.




Thanks for this. It is a lot of work. I looked at some of what you posted and my head started spinning. I'm not the sharpest knife in the drawer and legalese makes the pea that rattles around in my dome vibrate out of control. I'll be trying to find anything I can that might help my situation at it moves forward but I'm not sure I can digest all you have made available.
I understand there is a statute in NC that states an HOA/HO dispute should be mediated before it is litigated but I can't see where an HOA BOD has to adhere to this. I may have mentioned this before but I could swear I remember seeing something else that requires NC HOAs to send letters to all property owners making them aware of the fact that this option is available to them in case there is ever a dispute between the two parties. In other words when the law was passed this required mailed document was part of the deal. I imagine I'll ceom across it.
Thanks all.

BTW-multi-quote advice???
TimB4
(Tennessee)

Posts:17830


12/07/2014 4:30 PM  
Posted By HowardC2 on 12/07/2014 4:29 PM
Thanks for all the replies and advice. I have not yet heard back about the request I made to meet with the BOD.
Can someone tell me if there is an easy way to multi-quote? I've been having to open the site in a new page, copy and past to the first page to quote replies?




That's the way it is done.
HowardC2
(North Carolina)

Posts:80


12/07/2014 4:42 PM  
[url]http://www.ncga.state.nc.us/Sessions/2013/Bills/House/HTML/H278v4.html{/url]
This is the statue. Section 1-j is the portion that refers to the requirement to make homeowners aware of this law.
HowardC2
(North Carolina)

Posts:80


12/07/2014 4:42 PM  
[url]http://www.ncga.state.nc.us/Sessions/2013/Bills/House/HTML/H278v4.html[/url]
NpS
(Pennsylvania)

Posts:4216


12/08/2014 3:30 PM  
Posted By HowardC2 on 12/07/2014 4:29 PM
Posted By JanetB2 on 12/05/2014 9:24 PM
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.


Is there something in the content of any of my posts that don't make sense or is there anything I can do to help you? I appreciate the help and I want to make sure everyone here knows I am being completely forthright in my statements.
One thing that keeps coming around when I talk with my wife and even my lawyer is the original issue abou the pond/sediment trap/area. The original dispute I had with the BOD (or they had with me??) was completely settled. I admitted being wrong and, after a few weeks, I made my wrong right in the eyes of the HOA BOD. For this reason I feel like the original issue and this bill are two completely separate things.




Howard

The PA statutes are based on the Uniform Planned Community Act and the Uniform Condominium Act. So are the NC statutes. What this means is that while the statutes are probably not identical, the PA statutes and the NC statutes are very similar.

I agree with you that there are two separate issues - you completely settled the first one - then the HOA came against you (and not your 2 neighbors) without any apparent justification or advance notice to you. If it's becoming too stressful to put up a fight, drop it. But if you want to stand your ground, you may be successful with or without a lawyer.

Many judges realize that there is an unfair imbalance when a person without a lawyer goes up against a lawyer on the other side. As strong as your position is, I think that there are judges who will want to make sure that you get a fair chance. Of course, when you go to court, you never know who you are going to get until a judge is assigned to your case.

So if you do decide to go to court on your own, I would suggest that you find out the name of the judge who is assigned your case and then ask your lawyer what that judge's reputation is for dealing with individuals who are not represented by counsel.

Sikubali jukumu. Read all posts at your own risk.
HowardC2
(North Carolina)

Posts:80


12/08/2014 3:38 PM  
Posted By NpS on 12/08/2014 3:30 PM
Posted By HowardC2 on 12/07/2014 4:29 PM
Posted By JanetB2 on 12/05/2014 9:24 PM
NpS: PA statutes do not apply to the OP's state. I know how this works in various states especially those which implement UCIOA and just need info from OP. There is something here that does not make sense and I am looking for the root of the issue.


Is there something in the content of any of my posts that don't make sense or is there anything I can do to help you? I appreciate the help and I want to make sure everyone here knows I am being completely forthright in my statements.
One thing that keeps coming around when I talk with my wife and even my lawyer is the original issue abou the pond/sediment trap/area. The original dispute I had with the BOD (or they had with me??) was completely settled. I admitted being wrong and, after a few weeks, I made my wrong right in the eyes of the HOA BOD. For this reason I feel like the original issue and this bill are two completely separate things.




Howard

The PA statutes are based on the Uniform Planned Community Act and the Uniform Condominium Act. So are the NC statutes. What this means is that while the statutes are probably not identical, the PA statutes and the NC statutes are very similar.

I agree with you that there are two separate issues - you completely settled the first one - then the HOA came against you (and not your 2 neighbors) without any apparent justification or advance notice to you. If it's becoming too stressful to put up a fight, drop it. But if you want to stand your ground, you may be successful with or without a lawyer.

Many judges realize that there is an unfair imbalance when a person without a lawyer goes up against a lawyer on the other side. As strong as your position is, I think that there are judges who will want to make sure that you get a fair chance. Of course, when you go to court, you never know who you are going to get until a judge is assigned to your case.

So if you do decide to go to court on your own, I would suggest that you find out the name of the judge who is assigned your case and then ask your lawyer what that judge's reputation is for dealing with individuals who are not represented by counsel.




Thank you for this. I would love to let a judge hear my story but wouldn't it be a bit awkward to ask my atty advice if I were to decide to not use him and represent myself?
Do you know of any "guides" that I could use in order to best prepare myself for self representation?
Thanks again
NpS
(Pennsylvania)

Posts:4216


12/08/2014 4:32 PM  
Posted By HowardC2 on 12/08/2014 3:38 PM
I would love to let a judge hear my story but wouldn't it be a bit awkward to ask my atty advice if I were to decide to not use him and represent myself?

Do you know of any "guides" that I could use in order to best prepare myself for self representation?
Thanks again




IMO, there is no reason for it to be awkward. You are making a financial decision. You are paying for your lawyer's time to help you prepare for court but not to represent you in court. Let your lawyer know that you can't afford to put additional money toward having him spend his time in court with you. See what he says.

Ask your lawyer to prepare a "pre-trial memo" for you. This will be a few pages long. It will spell out the facts and present your legal arguments why the judge should decide in your favor.

The judge will ask you for a "pre-trial memo." You can either provide the judge with something you write in your own words or the one that your lawyer wrote for you. Whichever way you go, make sure that you understand what your lawyer wrote for you in his memo.

The judge will also ask the other side for their "pre-trial memo." These memos are provided to the court and exchanged by the parties. So you SHOULD have a copy of their memo before it goes to trial. Make sure you understand what theirs says.

You may never get to trial. Sometimes the parties look at these memos and decide that they really don't want to spend days in court. But by preparing yourself, you increase the chance that the HOA could change its position.

Having "your day in court" rarely turns out to be anything like the stuff you see on tv. Settle if you can, but settle on terms that you and your wife can live with.






Sikubali jukumu. Read all posts at your own risk.
JanetB2
(Colorado)

Posts:4211


12/10/2014 10:55 PM  
Howard:

If supposedly no one can place anything in a drainage easement and the HOA made you remove a pond liner which would potentially assist with drainage and instead they themselves filled in the "drainage easement" pond ... sorry there is a large discrepancy here.

In an HOA knowledge is POWER!!! You need to read your HOA documents attached to your property and see exactly what they state with regards to this area in question. If this area is considered a drainage easement, then if you could not make into a drainage pond ... what right does the HOA have to eliminate and fill the drainage easement which could potentially cause property issues to others in future?

If this area (even though within your property line) is under HOA control then it should be community property and all share in the maintenance. If it is your property to control (due to property line or easements), then the HOA cannot determine what is to be done with the pond. Sorry ... it still does not make sense that if the pond was there only for road construction and located within your property line that you would not have complete control over the area. Potentially the only reason for an HOA to control would be if needed for storm drainage which can affect ;both you and other property owners.

This is the reason I asked what is the exact wording stated in your documents on this issue. It just does not made sense that the HOA has the legal rights they are claiming on this issue.
JanetB2
(Colorado)

Posts:4211


12/10/2014 10:55 PM  
Howard:

If supposedly no one can place anything in a drainage easement and the HOA made you remove a pond liner which would potentially assist with drainage and instead they themselves filled in the "drainage easement" pond ... sorry there is a large discrepancy here.

In an HOA knowledge is POWER!!! You need to read your HOA documents attached to your property and see exactly what they state with regards to this area in question. If this area is considered a drainage easement, then if you could not make into a drainage pond ... what right does the HOA have to eliminate and fill the drainage easement which could potentially cause property issues to others in future?

If this area (even though within your property line) is under HOA control then it should be community property and all share in the maintenance. If it is your property to control (due to property line or easements), then the HOA cannot determine what is to be done with the pond. Sorry ... it still does not make sense that if the pond was there only for road construction and located within your property line that you would not have complete control over the area. Potentially the only reason for an HOA to control would be if needed for storm drainage which can affect ;both you and other property owners.

This is the reason I asked what is the exact wording stated in your documents on this issue. It just does not made sense that the HOA has the legal rights they are claiming on this issue.
JanetB2
(Colorado)

Posts:4211


12/10/2014 10:59 PM  
Sorry for internet glich with made last posting show up twice.
HowardC2
(North Carolina)

Posts:80


12/11/2014 3:37 PM  
I realise the HOA BOD is making this up. There is no legal reason that they can charge me for filling in this area however it all comes back to the same issue. The issue is that the HOA BOD HAS DECIDED TO CHARGE ME. Not yelling at anyone-just making this point clear. They have voted to charge me. Therefor it is up to me to incur the required expenses to fight them OR I bend over and take what they send my way. It really doesn't matter what the documents even state! An HOA in NC can do whatever they want in the way of making life difficult and/or expensive to a homeowner and it is up to the homeowner to seek justice. Again, this all comes down to paying an atty and they are not cheap nor should they be IMO. There are precious few options for a NC HOA member to fight a BOD that has gone awry. I'm at my wits end and I have no idea how to fight these people without paying. I've already spent $1K on my atty for him to write letters and email correspondence to the HOA atty and I am still being told I am going to have a suit brought against me. On my HOA website there is a page for documents. On this page is a two page "policy" for resolving an HOA/member dispute by way of an adjudicatory committee hearing. The NC statute would trump this policy regardless but this BOD never allowed me this opportunity. All I got was a letter in the mail that I owe $13,000.00 (actually $13,010.00 as of this months statement including the late payment fee). There really ought to be some state agency that I could appeal to. An HOA has such an unimaginable amount of power that there needs to be a mechanism that one can use to keep them in check if need be. To simply decide that a homeowner owes money to the HOA and then sue them for it is just not the way things should be able to happen.
Thanks
NpS
(Pennsylvania)

Posts:4216


12/11/2014 5:42 PM  
Howard

Did you request and Adjudicatory Committee Hearing in writing?
Did you receive a response in writing?
Did the BOD offer you the hearing?

These are easy yes-no questions that will help you to stay focused and not get distracted by generalizations.
Also, print a copy of what is posted on the website = Things on the website can be taken down and you would not have a copy to rely on.
I realize that you are frustrated and concerned about expense. That's why it's best to take things one small step at a time.

Sikubali jukumu. Read all posts at your own risk.
TimB4
(Tennessee)

Posts:17830


12/11/2014 5:57 PM  
Posted By HowardC2 on 12/11/2014 3:37 PM

The issue is that the HOA BOD HAS DECIDED TO CHARGE ME. Not yelling at anyone-just making this point clear. They have voted to charge me. Therefor it is up to me to incur the required expenses to fight them OR I bend over and take what they send my way.




Howard,

That is certainly a true statement. I'm fairly confident that everyone understands this. We can condemn what your Board has done. However, it doesn't change the fact that they did what they did.

Therefore, all we can do is offer you options on what may be needed to fight or various methods to fight the issue. The decision of fighting or not fighting has to be yours.

The way to make sure future Boards don't do what they want is to gather support and make sure that these individuals are not reelected or are recalled. Then create polices, procedures and/or amend documents to make it more difficult for this to happen in the future.


EmmaH1


Posts:0


12/12/2014 4:35 AM  
Howard,

From everything you say it does not seem like the HOA would win their case IMO (unless I'm completely missing some major facts). Have they put a lien on your house yet? Have they filed suit yet?

For one thing the contractor was hired by them to do work, his contract was with them not you. Have they paid this contractor? or is the contractor demanding money from them? are they are trying to get you to pay now?

If they are threatening a lien, what type of lien? It couldn't be considered a "unpaid assessment lien" (this is not an assessment). It could not be a mechanics lien by the HOA they did not perform work on your property. (The contractor would be the one who could put that lien on whomever he had the contract with.) It can't be judgment lien because there has been no judgment made by the courts.

It is against the law to file a false or wrongful lien on another person, there are legal consequences. What is the language of your letter from their attorney? Is it simply a bill trying to coax you to pay? Are there any written threats or is it just talk from them so far?

You say that they agreed that you did everything to their satisfaction and they said it was behind you. You said you have that in writing from them. Then they contracted with this man to do work, they agreed to pay him not you. This contractor state to them it would cost $6,000, he then went ahead and added $7,000 to that price. You had given no consent to be responsible for any of that, it is their problem. I don't see how they have a case against you, am I missing something very important here?

Have you thought about consulting with another attorney, lots will spend a half hour with you free of charge. (If you do that try to condense the most important points of your case to get the most from that consultation with the attorney. Write down all the facts, let the attorney read through the basics of your case first when you meet. Then let him ask you the questions he or she feels is most important to the case.) Lawyers are like doctors you always need more than one opinion.

Also remember that the burden of proof is always heavier on the plaintiff (them) if it goes to court. They must prove everything. If your case is as clear as you are saying and I were you I may consider representing myself, IF they even go through with their threats. I still think they may just be trying to "bully you" because they really have nothing to lose by doing that and if you give in and just pay it would be worth it.

Emma
EmmaH1


Posts:0


12/12/2014 7:02 AM  

"Courage is fire, and bullying is smoke" -BD

Howard, this still could be all "smoke".

If all they have actually done is voted to "send you the bill", that alone doesn't prove anything. I would get a few other attorney's advice in the meantime and don't panic. I wouldn't spend any more money on an attorney until they actually take action (they may not ever take it any further, you can always negotiate ant any point in time.). Your lawyer did not say you were wrong, did he? he said if you hired him to represent you it would cost a lot of $$$$$. At least he was being honest, but that doesn't they have a good case against you.

Another option would be to hire a paralegal to help you IF they file a suit against you, that would cut down on costs. A paralegal could give you information on what you would be able to counter sue for against them and instruct you on what paperwork to file and where. (Make phone calls, talk to people and research. Be prepared but don't panic.)

Look up some legal terms that may apply to your situation such as:

False lien/wrongful lien/Bogus lien
Filing of a False document
Slander of Title
Harrassement and Threats
Sending a Cease and desist letter
Abuse of Process
Abuse of Power

*I'm not an attorney and this is not legal advice, just ideas/opinions

Good Luck
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