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Subject: Reasonable Time to Reply
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DarcyS2
(North Carolina)

Posts:28


07/16/2014 5:59 PM  
Hello all! Hope everyone is having a great night.

I'm still trudging through trying to learn more about the chaos that appears to be our legacy.

I've been trying to get some information from current board members - like Articles of Incorporation (they are not filed with the Secretary of State nor are they in our book of records with our CCR & By-laws), more information on the dimensions in the layout (which I shared in a previous post), BOD mintues (which are also not in our book of records) and the Board has simply stopped replying to my messages. I never sent anyone more than 1 message a day, and never repeated my request more than once a week.

As an example, I sent our secretary a request for the Articles of Incorporation on June 13, after looking for them in our "book" of records. I emailed her again on June 20, I emailed again on June 30th. She never responded. So I emailed her again on July 9th and still no response. Clearly she's not happy with me. Maybe I was hounding her, but I feel like it's pretty important stuff. I finally sent her a message and asked her if she had informed the other Board members that it was missing and she finally responded with "yes, they are aware". Maybe I'm more concerned than I need to be.

Another example is that I asked a few clarifying questions on the layout July 1st and July 9th and I've received no reply, not even an acknowledgement of my email.

My two examples are really more to illustrate my frequency of emailing (so you know I'm not stalking them every day...I leave at least a week in between my inquiries).

So after rambling on for half a page - here's my questions I'd love your opinion on:

What is a reasonable amount of time to expect a reply from a Board member?

If I've emailed the question multiple times and waited at least a week between for answers and still have gotten no response - should I send a letter or certified letter in the case of something that I consider really important like the Articles of Incorporation and the fact that we may not be properly registered with the State?

Lastly, if the answer to my question is something that a vendor of the Homeowners Association would know - as in the dimensions - is it okay for me to contact them (I have their email) and cc: the Board member if they have not supplied the information in more than 21 days after it was requested?

Love to hear your thoughts!

Many thanks!

RichardP13


Posts:0


07/16/2014 8:11 PM  
I guess my first question would be, do you know if you are really incorporated? I know of a number of HOA who are not incorporated.
LarryB13
(Arizona)

Posts:4099


07/16/2014 9:12 PM  
Darcy,

It may be time to lawyer up.

The recorded documents furnished by the developer stated that you were supposed to have an association incorporated as a non-profit corporation. Based on what you have reported finding, this sounds like a fraudulent representation as the association is not incorporated now and may never have been. What you do have is a group of yahoos running around claiming to be the association but are unwilling to provide any evidence of their legal authority to do so.

Yours is not the first association where the developer, for whatever reasons, failed to incorporate the association. This leads to a lot of questions that no one on this site has an authoritative answer for.

Hire an attorney, let him collect the information, and then consider acting on his advice.

KerryL1
(California)

Posts:7044


07/16/2014 9:24 PM  
Does NC statutes that have to do with HOAs offer you any guidance about what a "reasonable" length of time is to receive info? In CA (w/out actually checking) I think it's 10 days.

But give all you've told us, I'm inclined to agree with Larry.

I would NOT contact the vendor you mentioned directly at this time.
CyrstalB
(Maryland)

Posts:457


07/17/2014 6:49 AM  
It's very inconsiderate of them to not respond at all, but it seems that you have some of your answers and it would be very sad if you feel you need to take the advice of "lawyering" up because they won't respond to you in a timely manner. Timely being the operative word here.

Or perhaps those "yahoos" while trying to honor your requests, found out that the developer didn't do his due diligence and it's all such a mess they don't know which way is up. And having experienced that exact scenerio in our HOA, they are scrambling to get it straightened out. First they have to hire or consult with an attorney, then they have to file the paperwork and get their INC. status corrected with the state which can take four weeks or more. It took us several months to get it straightened out and during that time we had to be very cautious of every detail or request or statement because we were at great risk of liability issues. It effectively froze us because if your supposed to be INC. and you aren't but are doing business, you are most likely violating the law.

Perhaps some empathy can help your cause, since you most likely do not really know just what the board is up against at this point, if that is what they have found. It doesn't have to be taken personally, unless there is more to the story than written here. Like everything else in this society, we now view and take everything personally, when most of the time it has nothing to do with you. It's so easy to label every board as being anything but a good thing, just as it's easy for boards to think that any HO is wanting to cause trouble. But it's up to you and your board to move forward and seeing it from their side can help them see it from your side too.

What is your end game in this request of documents? If it's to protect your interest then perhaps an email to the board offering any help in figuring all the mess out would be greatly appreciated by them. Such support is hard to get though because HOA's are painted so horribly by so many people. (whether it's deserved or not is not the point)

Like our grandparents used to say, you catch more bees with honey than you do with vinegar.

DarcyS2
(North Carolina)

Posts:28


07/17/2014 7:12 AM  
Thanks for the suggestions. Keep them coming! You guys are so helpful! I'll continue to press on.

The bar association of NC will set you up for a 30 minute consultation with a lawyer in the are of practice you need for $50. It's a short meeting, but should give me enough to get some advice on a strategy of what to do next.

I have an appointment with a lawyer that specializes in HOA law, as he represents several HOAs - he doesn't currently represent ours and he never has - they made sure of that before they accepted my appointment. So considering he should be very familiar with the law I'm hopeful it'll be an efficient and informative meeting. Wish me luck!
JohnC46
(South Carolina)

Posts:9313


07/17/2014 7:12 AM  
Darcy

A valid question was asked. What is your end game?

Thanks


SteveM9
(Massachusetts)

Posts:3599


07/17/2014 10:00 AM  

Another example is that I asked a few clarifying questions on the layout July 1st and July 9th and I've received no reply, not even an acknowledgement of my email.

My two examples are really more to illustrate my frequency of emailing (so you know I'm not stalking them every day...I leave at least a week in between my inquiries).


Email? Email?!! An email can be easily ignored or its quite possible they never even received it. Spam filters. You should be sending registered letters and forget about the email thing.
SteveM9
(Massachusetts)

Posts:3599


07/17/2014 10:05 AM  
like Articles of Incorporation (they are not filed with the Secretary of State nor are they in our book of records with our CCR & By-laws


If your on a witch hunt, you should be requesting to view HOA records. Asking for one document at a time takes time and if your using a property mgmt company, time is money. So you should go there yourself to find what your looking for.
MelissaP1
(Alabama)

Posts:9130


07/17/2014 11:36 AM  
Keep in mind that HOA meetings if they are monthly can't approve the meeting notes until the next meeting. If then there is an issue, it can take another month to approve. Plus your request may need to wait till meeting time to discuss. We only met all together at the meeting. That's when official business was done and recorded.

The Articles of Incorporation may or may not exist. If your not incorporated, then no they don't. IF they do exist, then they are considered PUBLIC and NOT the responsibility of the HOA to provide. It would be a courtesy for them to provide. CC&R's are also public records at the County courthouse. By-law and Archectual Control documents are the only ones really exclusive to the HOA in most cases. Although there are a few HOA's that there is only an ACC document that controls things. Those are rare but I have heard of them.

If you have an issue, have an answer for that issue you want. The HOA is NOT in the business of providing you answers you want to hear. Have an idea of what solution you want when you present. Otherwise it comes off as "Witch hunting" and there are no witches.

Former HOA President
DarcyS2
(North Carolina)

Posts:28


07/17/2014 12:36 PM  
Thanks again for all the response -- very helpful.

KerryL - I've reviewed the Chapter 47C: North Carolina Condominium Act: http://www.ncleg.net/gascripts/statutes/StatutesTOC.pl?Chapter=0047C and Chapter 55A: North Carolina Nonprofit Corporation Act: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_55a.html and could not find anything relative regarding time to reply. I know some states have them, but I haven't been able to find anything for NC.

CrystalB - You make a great point. I do need to remember empathy. I just know that a group of homeowners have banded together and jointly gone to a lawyer for an initial consultation. I'm trying to remain neutral because I see both sides of the issue. But I did warn the board that I thought there was more than just an empty threat at hand. I have not revealed to the group that the Articles of Incorporation are missing or that in the CCR the registered agent that is listed has passed away. Here's an interesting article about a lawsuit that was decided when the registered agent wasn't reached http://carolinacommonelements.com/2013/02/11/do-you-know-who-your-registered-agent-is/ - I don't want that to happen to us.

John C - My end game is to limit the liability that we are currently exposed to and to make a sensible decision about running for a position on the board. I really do feel this group of individuals has pooled together enough money so that it won't cost any of them more than a few hundred bucks to really make a ruckus and the board doesn't seem concerned - or maybe they are behind the scenes. I should give them the benefit of the doubt. The election is the last weekend in August and honestly I'm not sure I want to be on the board with the storm that is brewing - that's right - I'm a coward. It's not that I only want to be on the board when it's sunshine and roses, because with the hundreds of posts I've read here - it's never sunshine and roses, but knowing what I know and all the deficiencies and animosities, it's a tough decision.

Steve M - I've already made the appointment and have gone twice to review the records myself. I offered to pay for any copies that I needed and they didn't have access to a copier, so the next time I went I took a scanner/printer/copier with me, which they were fine with. There were only 1 set of BOD minutes since November of last year when the fire broke out. I know they have had meetings because they have selected a construction firm, selected a new layout design for the interior of the complex, selected a new septic system (which required a assessment - that the entire HOA did vote for which was properly documented), etc. None of these decisions are documented in the record. Again, with the disappointment over the interior layout bubbling up I think the fact that they haven't documented any of these motions in the official records is concerning.
DarcyS2
(North Carolina)

Posts:28


07/17/2014 1:05 PM  
Melissa:
You're right, maybe I haven't given them enough time. I'll cool my heels for another few weeks before I sound the alarm again.

I'm worried you are right about the Articles of Incorporation. I wish they would just tell me. I have tried to access them through all public means, and they are not there, I even called the Secretary of State to see if they could suggest any other ways for me to located them and I'm waiting on a call back *due to high call volume, please leave a message* =)
LarryB13
(Arizona)

Posts:4099


07/17/2014 1:22 PM  
Posted By DarcyS2 on 07/17/2014 12:36 PM

I have not revealed to the group that the Articles of Incorporation are missing or that in the CCR the registered agent that is listed has passed away. Here's an interesting article about a lawsuit that was decided when the registered agent wasn't reached http://carolinacommonelements.com/2013/02/11/do-you-know-who-your-registered-agent-is/ - I don't want that to happen to us.



This makes no sense. You say there are no known Articles of Incorporation but that the CC&R's names a registered agent, who is now deceased.

A registered agent (or statutory agent) is someone named in the Articles of Incorporation. This may be amended by subsequent filings. I have never heard of a registered agent being named in CC&R's. Are you referring to the Declarant?
KerryL1
(California)

Posts:7044


07/17/2014 1:32 PM  
Good news that you have an appointment with an HOA lawyer. For your questions, shouldn't take long at all.I'd be very concerned about the "missing" minutes given all of the major decisions the boar made at that time.

Apparently in Melissa's Alabama. HOAs aren't required to provide many if any HOA records to Owners. But I think NC must supply them.
DarcyS2
(North Carolina)

Posts:28


07/17/2014 1:44 PM  
Larry

From what I found on the internet - a registered agent is an individual or a business, whose sole responsibility is to accept legal documents (service of process, lawsuits, liens, subpoenas)

In the CCR the service of process is listed as Mr. RM Jacks so I assumed (maybe wrongly) that it was the same as the Registered Agent. As part of my search, I found several homeowners associations that did have him listed as their Registered Agent, ours just wasn't one of them.

On another note, since my earlier post I got a call back from the Secretary of State - they searched as well and didn't find anything, suggested maybe we were unincorporated, which didn't sound like such a big deal the way he explained it, and suggested I call the county, because if we were unincorporated, that's where we would have been required to file. They looked online and in their paper records and couldn't find anything except the CCR and bylaws.

Hopefully I'm worried over nothing and the Board is working on this issue and will have it resolved before anything happens.
MelissaP1
(Alabama)

Posts:9130


07/17/2014 2:09 PM  
What are you talking about our HOA not providing records? We are not required to supply PUBLIC records. Which are CC&R's and Articles of Incorporation are. Most of the time the actual documents are turned over by the SELLER NOT the HOA. Remember you are NOT a member of the HOA until you are an owner. After you are a member, you can have all the access you want to the records. However, I am NOT going to hand over records to people who just walk down the street and like a house... Records are given in proper context.

Former HOA President
LarryB13
(Arizona)

Posts:4099


07/17/2014 2:20 PM  
Darcy,

Real estate developers are notorious for having billion-dollar dreams and absolutely no cash of their own. They can borrow to purchase the land, they can borrow to purchase materials, and they can borrow to pay the contractors. But no one lends money to hire an attorney who wants cash, so developers often take the cheap way out by writing the declarations themselves even though they are totally lacking the knowledge to do so.

I suspect that your developer fell into that category. He knew that there was something called a registered agent but was clueless about articles of incorporation so he stuck that part into the CC&R's. I doubt that it effects anything but it is evidence that he had no idea what he was doing.

I would not recommend delaying consultation with the attorney. From what you have posted in other threads the current board sounds very unresponsive. If I recall correctly, the association secretary could not even state whether yours is incorporated or not and seemed to show no interest in finding out. The problem with giving the other party more time to respond when they have previously shown no interest in responding is that the clock keeps ticking. Sooner or later you will run into issues with statutes of limitation and doctrine of laches, meaning you will be stuck with the status quo.

BTW, I suspect your developer failed to incorporate the association for the same reason he did not use an attorney: no cash to pay for filing fees.



KerryL1
(California)

Posts:7044


07/17/2014 2:32 PM  
Melissa, Darcy IS already an owner--her questions had nothing to do with being a prospective buyer.
DarcyS2
(North Carolina)

Posts:28


07/17/2014 2:44 PM  
Larry - I would agree with you, but in this case, the Declarant is a bank in our state that is still in business. Seems to me that they would have known what to do and had the money to do it. Of course this was 1979 and things have changed a lot since then. The nice lady at the Register of Deeds that went back through paper files for me today, was laughing about how rate it was to refer to the paper files now that they are almost all digitized.
TimB4
(Virginia)

Posts:16700


07/17/2014 2:46 PM  
Darcy,

Perhaps it's the approach that you are taking that is the cause for lack of responses.

I have the impression that you have simply been asking for various documents. As others have said, this can give the appearance of a "witch hunt." Instead you might try an approach along the lines of:

I've been trying to learn about our Association and see that there is a requirement in the CC&Rs that the Association be incorporated. However, I was unable to locate any record of the Association being incorporated with the NC Corporation Commission. I would like to assist the Board in bringing the Association into compliance with our governing documents and would like to discuss with the Board how this can be accomplished." Then have a plan on what you can do to help bring the Association into compliance.


Often, using the approach of I want to help vs. I would like to have can keep the lines of communication open.
DarcyS2
(North Carolina)

Posts:28


07/17/2014 3:20 PM  
Tim - That's a great suggestion. I'm having lunch with two of the BOD members next week -- I think I'm going to use your exact words. Thanks!
TimB4
(Virginia)

Posts:16700


07/17/2014 3:48 PM  
Darcy,

Here is some information you may find useful for your meeting:

Considerations for Determining Whether Association Chapters Should Incorporate Although not specific to HOAs, it does list general advantages to being incorporated.

What Is the Difference Between an Unincorporated Association & a Corporation? from legal zoom.

Why Associations Should Incorporate a 2003 article by an attorney


Hope this helps,

Tim
DarcyS2
(North Carolina)

Posts:28


07/17/2014 4:33 PM  
Tim
Are you in my head? I've been spending the last hour or so reading every article I can find on the differences between incorporated and unincorporated and Why to Incorporate. I've not come across yours so I'll read them next. Thanks!
JohnC46
(South Carolina)

Posts:9313


07/17/2014 4:50 PM  
Darcy

Tough love here, but I do not think your reply was directed to my specific question about your end game.

I believe the answer to what is your end game should be you have issues with how the BOD is going about what they are doing. Specifically their secrecy, added costs, maybe even non-conforming to safety regulations, upset people in the next door building about potential differences between the buildings, etc., which I agree with.

I say call it what it is. A major screw up on the BOD's part in many ways. Maybe they need to be taken to wood shed legally as they do not seem to listen to reason.

DarcyS2
(North Carolina)

Posts:28


07/17/2014 6:00 PM  
John - I really hope we can avoid that. It has been such a lovely place...and now it's just so divided. We have this new "voluntary mediation" law in NC -- if it's voluntary, I'm not sure why it's a law -- well I think the law part comes in because they are required to notify members about the existence of the voluntary mediation. If we have to go down a path to get to a resolution, I'd love to see us start there and not in court. "Voluntary Prelitigation Mediation. – Prior to filing a civil action, the parties to a dispute arising under Chapter 47C of the General Statutes (North Carolina Condominium Act), Chapter 47F of the General Statutes (North Carolina Planned Community Act), or an association's declaration, bylaws, or rules and regulations are encouraged to initiate mediation pursuant to this section"
LarryB13
(Arizona)

Posts:4099


07/17/2014 8:19 PM  
Posted By DarcyS2 on 07/17/2014 2:44 PM

the Declarant is a bank in our state that is still in business. Seems to me that they would have known what to do and had the money to do it. Of course this was 1979 and things have changed a lot since then.



Have you actually confirmed that the bank is the Declarant? My guess from all the screwed up paperwork is that the developer did not know a declarant from a registered agent from a mortgage lender and stuck the bank's name in there. There declaration should have been signed by an officer of the bank if it really was the declarant. My first guess is that if you contact the bank they will express a great deal of surprise in finding themselves named as declarant.



Posted By DarcyS2 on 07/17/2014 4:33 PM
Tim
I've been spending the last hour or so reading every article I can find on the differences between incorporated and unincorporated and Why to Incorporate.



This is kind of a moot point. Your declaration states that the association is to be incorporated as a non-profit. Unless your fellow owners agree to an amendment you have no choice as to whether to be incorporated.

GlenL
(Ohio)

Posts:5491


07/17/2014 10:13 PM  
I can see a HOA being not incorporated but not a Condo development, the very nature of the beast screams
incorporated. Darcy have you read the fine print of the Declarations, you know the boring stuff at the beginning where it lays out where the boundaries of the development are, whether it is to be incorporated or not, definitions etc. There is a chance that while most HOA corporations are named after the HOA or vise versa i.e Happy Daze HOA Inc. due to a conflict or other reason it is possible that the HOA corporation is named something totally different i.e. ABCXYZ Inc. dba (doing business as) Happy Daze HOA.

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

Posts:16700


07/18/2014 12:39 AM  
Posted By LarryB13 on 07/17/2014 8:19 PM

This is kind of a moot point. Your declaration states that the association is to be incorporated as a non-profit. Unless your fellow owners agree to an amendment you have no choice as to whether to be incorporated.




Larry, this is certainly a correct statement. However, Darcy may actually have to "sell" the advantages of being incorporated to the members of the Board in order to have them be willing to comply. Some people who don't fully understand the advantages may simply see incorporation as another expense and extra paperwork that they just don't want to do.
CyrstalB
(Maryland)

Posts:457


07/18/2014 4:56 AM  
A consultation with an attorney is not going to provide you with the answer as to whether or not you are incorporated. You will have to pay them in order for them to research that and it sounds like you already have.

Remember when you do meet with them, their end game is to have you hire them for whatever they can, so be leary of what it is they say they can do for you. They are professional liars and get paid to do so.

if you have already checked with the Register of Deeds office in your county and surrounding counties for
similar names of your HOA and the Office of land records the N.C. Department of the Secretary of State and you can't find anything on your HOA, just exactly where the attorney look?

You don't need an attorney to tell you that you must become incorporated if your docs say that.

A recent experience of interviewing a new attorney, she didn't find anything, nothing on our HOA, but I was able to find seven, (7) different forms of our name at the dept. of land records, and they all showed all of our documents. How did I find it and she didn't? She tried to tell us we didn't exist according to her research. But we still had to pay her the consultation fee??

It sure sounds like the current board has just uncovered all the BS surrounding your HOA, and if your end game is to "decide" to be on the board, well, you should just run away now and sell your home because your current board is getting a taste of just what a thankless job it really is. They are probably trying to figure it all out, but now there is a band of owners who have hired an attorney, out of pocket? (really?)

I would love to talk to your current board and give them the much needed support they need to straighten this all out, because they are taking the fall for all the previous boards not doing their due diligence too. I know how that feels.

You want to help? Ask them to meet with you and the attorney you have hired. If you meet with the attorney on your own, it will cement the thought that you are on a witch hunt. plain and simple.
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