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Subject: Fining process for HOA in Missouri
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DakotaS
(Missouri)

Posts:41


07/22/2021 7:38 PM  
Hello everyone, I put up a fence lakeside on my property. The cc&R's state a fence under 3ft is allowed and doesn't have to be approved by the board. There are set back requirements but I made sure to be well within those as well. Our current HOA is ignorant on the rules and basically they do what they want. My question is can the legally fine me? They sent a letter stating if it's not removed by aug 16th they'll fine $100 a month. Nowhere in our restrictions or amendments does it say anything about fines or the process to receiving a fine ect. They did create a summary of the restrictions a couple years ago. This 5 page document has never been filed with the county or state in any way and has rules that are inconsistent with the filed restrictions and amendments. I know for a fact my fence isn't against the cc&R's I even checked with an online legal service who said I was in the clear.
My question is what is the process for fining? What rights do I have to fight the fine? On another note non of the board members have been elected they've all just kind of taken over and the community has by in large allowed this. We have our annual meeting in September where elections are supposed to be held. I am not sure if there is a way to fight against all of this but I'd certainly like to. I appreciate all the help and input.
MelissaP1
(Alabama)

Posts:10534


07/22/2021 9:29 PM  
So you want forgiveness oved approval?

Former HOA President
DakotaS
(Missouri)

Posts:41


07/22/2021 9:38 PM  
No..... I want to know specifically how I fight a fine. I don't need forgiveness I haven't done anything wrong. I just want to know how I fight a fine and appeal it and what not.
MaxB4


Posts:1395


07/22/2021 11:28 PM  
Posted By MelissaP1 on 07/22/2021 9:29 PM
So you want forgiveness oved approval?



You must be a real joy to be around.
DakotaS
(Missouri)

Posts:41


07/22/2021 11:31 PM  
Posted By MaxB4 on 07/22/2021 11:28 PM
Posted By MelissaP1 on 07/22/2021 9:29 PM
So you want forgiveness oved approval?



You must be a real joy to be around.





Honestly I didn't understand the initial reply. I thought my post made sense. But yeah..... different strokes for different folks I guess.
MelissaP1
(Alabama)

Posts:10534


07/23/2021 4:00 AM  
Well if you wanting to "fight" a fine, then you go to your fining schedule. Plus if it's "allowed" as much as you have stated, then you can quote the EXACT phrase from your rules to respond back to your HOA. If it's allowed then the fine can't be enforced now can it? If it's NOT approved and is in violation of a rule, then it is fine able.

Not sure what other advice you need accept I am sure the next part is "Do I need a lawyer to fight a fine?" as the next thing you ask...

Former HOA President
AugustinD


Posts:1695


07/23/2021 7:55 AM  
Posted By DakotaS on 07/22/2021 7:38 PM
Nowhere in our restrictions or amendments does it say anything about fines or the process to receiving a fine ect.
.
.
.
My question is what is the process for fining? What rights do I have to fight the fine?
-- As I believe you are aware, Missouri does not have a (non-condo) HOA statute.

-- The Missouri statute with the most relevance is the Missouri Non-Profit Corporation statute. The Non-Profit Corporation statute is silent with regard to fines (as is common nationwide for state nonprofit corporation statutes).

-- The only legal authority that exists for fining would be in the CC&Rs. I googled and quickly found a few Missouri law firm sites indicating similar or saying that the CC&Rs and nonprofit corp act are the only non-case law authorities. E.g. see
https://clarksimsonmiller.com/missouri-hoa-laws-and-regulations/
https://www.stevemartinlaw.com/blog/2019/11/three-ways-to-enforce-hoa-rules-and-regulations/
https://www.nolo.com/legal-encyclopedia/missouri-hoa-coa-foreclosures.html

-- Around 2017, the legislature was considering some bills giving HOAs the right to fine. This seems to reinforce my contention that Missouri HOAs having CC&Rs silent about fining cannot fine.

-- You indicate the CC&Rs are also silent regarding fining.

-- Nationwide in circumstances like this, I understand the only lawful recourse a HOA has is to take you to court to seek an injunction such that the fence meets whatever required lawful standard exists in the covenants.

DakotaS, I think your options are as follows:

-- Ignore the fines. See if the HOA is stupid enough to lien your home for the fines. When you go to sell your home, this might lead to disputes.

-- Speak to a Missouri law firm (maybe one of those mentioned above?). See if they will write a letter on your behalf threatening legal action unless the HOA removes the assessment of fines. Estimated cost: $500 to $3000.

-- Regarding elections, I am pretty sure you have brought this up before in recent months. I think you should go back to these threads and take the advice there. Or you could ask the attorney to add this to his/her list of things to demand of the board. Of course, this will cost you more money.
BenA2
(Texas)

Posts:1040


07/24/2021 6:27 AM  
Posted By MelissaP1 on 07/22/2021 9:29 PM
So you want forgiveness oved approval?



Seriously? They stated in their 2nd sentence that approval is not required under the CC&Rs. They do not need approval or forgiveness.
BenA2
(Texas)

Posts:1040


07/24/2021 6:37 AM  
First, it sounds like there is no violation so the issue of fines is moot.

Second, taking your money without authority is tantamount to theft. Even the government cannot take your money without a law allowing it. Unless there is a law where you live allowing fines or authority to fine in the CC&Rs, the HOA cannot fine you. That being said, if they do try to fine you, I would consult with an attorney to be certain.

SheliaH
(Indiana)

Posts:4239


07/24/2021 9:21 AM  
Whenever HOAs talk about fines, there should also be appeal rights, so if there is a process, follow it. If they refuse, turn this over to your attorney - a nastygram may be all you need for them to drop this. Afterwards, I'd make it clear to the them if they're going to have a fining process, do it right.

First, they should check their documents and state law , which Augustin already noted, to ensure they can do tnis. If this is what they feel is important, they should have a formal policy with appeal rights. If the documents indicate this may require homeowner approval, they'll need to keep reading to see how that's done and then make their case before the homeowners If they want approval.
DakotaS
(Missouri)

Posts:41


07/24/2021 11:24 AM  
So I reached out to his fight club and they pointed out that our HOA has filed the annual registration with the secretary of state since 2018. Because if this they apparently cannot conduct business. If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?
AugustinD


Posts:1695


07/24/2021 12:12 PM  
Posted By DakotaS on 07/24/2021 11:24 AM
So I reached out to his fight club and they pointed out that our HOA has filed the annual registration with the secretary of state since 2018. Because if this they apparently cannot conduct business. If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?
Short answer: In my opinion pursuing establishment of some kind of alternate corporation is playing with fire.

Long answer:
I presume there is a typ-o above, and what you are saying is that the HOA either has not filed the necessary annual paperwork with the Missouri secretary of state, or perhaps the HOA failed to pay a Missouri Secretary of State-required registration fee. Subsequently the Missouri S.o.S may very well have decreed the corporation is "involuntarily dissolved" or "inactive."

First, my understanding is that re-instating the corporation with the Missouri S.o.S. is not all that difficult.

Second, I believe dissolution of the corporation does not dissolve the covenants. The covenants are still contractual terms.

Third, even if the corporation is "dissolved" or "inactive," any common area that the dissolved/inactive corporation owns remains the property of the corporation. The courts and statutes do not just take away property titled to a corporation, even when the corporation is dissolved or inactive. Arguably the corporation is supposed to start trying to sell off the common area, but I doubt your HOA's members or board are talking about this. If someone has a slip-and-fall on HOA-owned common area, then even with a dissolved/inactive corporation, the membership may very well be liable to pay for the injuries.

Fourth, do your covenants state what is necessary to terminate the HOA (which arguably is different from the corporation)? Typically either a super-majority of, or more likely all, owners must agree to terminate the HOA.

Fifth, I believe a dissolved corporation is not supposed to conduct business, but you really need an attorney to spend several hours researching this before you make a move that could cost you a lot.

Sixth, my understanding is that legal problems may arise when one tries to create a new corporation with the same name.




JohnC46
(South Carolina)

Posts:11539


07/24/2021 2:55 PM  
Dakota

Some parts of your posts make no sense. Examples:

So I reached out to his fight club...what is a fight club?

and they pointed out that our HOA has filed the annual registration with the secretary of state since 2018....are you saying the HOA HAS NOT filed the annual registration each year? By the way, no biggie. Easily back filed.

Because if this they apparently cannot conduct business....Are you saying they CANNOT conduct business because of this?...if so, this is your opinion only.

If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?....I have never heard of such and I can only assume it could get very expensive.

Commas, proof reading, etc can be your friend.

MaxB4


Posts:1395


07/24/2021 4:59 PM  
Posted By JohnC46 on 07/24/2021 2:55 PM
Dakota

Some parts of your posts make no sense. Examples:

So I reached out to his fight club...what is a fight club?

and they pointed out that our HOA has filed the annual registration with the secretary of state since 2018....are you saying the HOA HAS NOT filed the annual registration each year? By the way, no biggie. Easily back filed.

Because if this they apparently cannot conduct business....Are you saying they CANNOT conduct business because of this?...if so, this is your opinion only.

If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?....I have never heard of such and I can only assume it could get very expensive.

Commas, proof reading, etc can be your friend.




No John, actually if you don't file your corporate forms to either the state tax board of your state or the SOS office, they can place you on suspension, meaning, you can no longer defend or prosecute on behalf of your association.
LetA
(Nevada)

Posts:1429


07/24/2021 9:16 PM  
Just an observation here, If this HOA does not have the certificate form the MO SOS to operate, that to me means they cannot operate as an HOA i.e. sending violation letters etc. Fruit of the poisoned apple as they say in the legal world.

Dakota, my first step is to make a copy of the violation letter and write a simple two paragraph complaint letter to the MO Secretary of State. In the meant time send a letter to your HOA board and property manager citing the specific covenant where you do not need board ARC approval for said fence. threaten legal action if they pursue the issue.

For all intensive purposes, this looks like an easy and inexpensive fix for you, you just need to supply the time and elbow grease.
CathyA3
(Ohio)

Posts:2475


07/25/2021 5:15 AM  
If this HOA hasn't filed the necessary forms with the state and they've lost their corporate status, the board and homeowners have much bigger problems to worry about than a fence - namely the loss of insurance.

This liability coverage on any common areas, Directors and Officers insurance (protects the board and officers if they get sued) and fidelity/employee dishonesty insurance (covers the HOA's financial assets in case somebody walks off with them). Without insurance, the homeowners are jointly and personally liable if, for instance, somebody gets hurt on the common areas and sues the HOA.

This ought to scare the cookies out of everybody.

The board's first order of business is to file the necessary paperwork to reinstate corporate status and get their insurance sorted. The other first order of business is to read their CC&Rs (and bylaws if they have them) and to understand what they can and cannot do.
MelissaP1
(Alabama)

Posts:10534


07/25/2021 6:36 AM  
I am still puzzled as why the OP can't simply "fight" the fine by going to board to present their evidence. I mean if it's true and written, then simply responding with the EXACT quote from the rules should suffice. How did it escalate to proving the HOA is not official or whatever? Simply prove what you say is true. Done.

Former HOA President
CathyA3
(Ohio)

Posts:2475


07/25/2021 6:52 AM  
Posted By MelissaP1 on 07/25/2021 6:36 AM
I am still puzzled as why the OP can't simply "fight" the fine by going to board to present their evidence. I mean if it's true and written, then simply responding with the EXACT quote from the rules should suffice. How did it escalate to proving the HOA is not official or whatever? Simply prove what you say is true. Done.



True. But that's too simple - you know we love to talk things to death around here. :-)

The possibility that the HOA may be operating without legal authority, never mind what the CC&Rs say, is additional evidence in the OP's favor. They may not need it, but it's there if the board is foolish enough to keep arguing. (And if it is true, then the OP and the rest of the HOA probably have more urgent problems than the fence.)



AugustinD


Posts:1695


07/25/2021 7:52 AM  
Posted By LetA on 07/24/2021 9:16 PM
Just an observation here, If this HOA does not have the certificate form the MO SOS to operate, that to me means they cannot operate as an HOA i.e. sending violation letters etc.
This is flatly incorrect. An administratively dissolved corporation retains many rights that are relevant here. From Missouri statutes:

=== Start Missouri Statute Section 355.691 ===

"Effect of dissolution. — 1. A dissolved corporation continues its corporate existence but may not carry on any activities except those appropriate to wind up and liquidate its affairs, including:

  (1) Preserving and protecting its assets and minimizing its liabilities;

  (2) Discharging or making provision for discharging its liabilities and obligations;

  (3) Disposing of its properties that will not be distributed in kind;

  (4) Returning, transferring or conveying assets held by the corporation upon a condition requiring return, transfer or conveyance, which condition occurs by reason of the dissolution, in accordance with such condition;

  (5) Transferring, subject to any contractual or legal requirements, its assets as provided in or authorized by its articles of incorporation or bylaws;

  (6) If the corporation is a public benefit corporation, and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring, subject to any contractual or legal requirement, its assets exclusively for one or more purposes described in section 501(c)(3) of the Internal Revenue Code; or if the dissolved corporation is not described in section 501(c)(3) of the Internal Revenue Code, to one or more public benefit corporations, including a foreign corporation that would qualify under this chapter as a public benefit corporation;

  (7) If the corporation is a mutual benefit corporation and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring its assets to its members or, if it has no members those persons whom the corporation holds itself out as benefitting or serving; and

  (8) Doing every other act necessary to wind up and liquidate its assets and affairs.

  2. Dissolution of a corporation does not:

  (1) Transfer title to the corporation's property;

  (2) Subject its directors or officers to standards of conduct different from those prescribed in sections 355.316 to 355.501;

  (3) Change quorum or voting requirements for its board or members; change provisions for selection, resignation, or removal of its directors or officers or both; or change provisions for amending its bylaws;

  (4) Prevent commencement of a proceeding by or against the corporation in its corporate name;

  (5) Abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or

  (6) Terminate the authority of the registered agent.

=== End Missouri Statute Section 355.691 ===

Missouri case law chatter on the above:

https://cases.justia.com/missouri/supreme-court/sc91138-45964.pdf?ts=1396129272

https://law.justia.com/cases/missouri/supreme-court/2015/sc94693.html
("Although the Original HOA sat dormant in a state of administrative dissolution, Missouri law allows for rescission of the administrative dissolution. Mo. Rev. Stat. §351.488. Only an actual dissolution of that entity or unanimous consent of all of the owners of property could have extinguished the authority of the Original HOA.")

Note how these cases speak of a dissolved corporation's exclusive right to assign control of the HOA to a new corporation. The OP here does not, on her own, have this right. Only the HOA's board of directors has this right, even (and pursuant to the case law above, especially) in a state of "administrative dissolution" of the HOA corporation.

Furthermore, as stated in the statute section above, and in order to deal with the HOA's liabilities, it appears to me that an administratively dissolved corporation may, pursuant to the covenants (a contract with the owners), continue to collect assessments.

The OP is barking up the wrong tree when she contends that the HOA corporation being "administratively dissolved" somehow means either the HOA or the corporation no longer exist. When a HOA corporation is "administratively dissolved," the courts say the HOA still exists; the corporation still exists; and the covenants continue.

Anyone thinking Missouri is weird this way: No. Statutes like Missouri's above are common nationwide.
CathyA3
(Ohio)

Posts:2475


07/25/2021 8:22 AM  
In my state - which may operate differently from Missouri - there is a difference between an HOA being dissolved vs. losing its corporate status due to failing to file the proper forms on schedule. In the latter case, the HOA still exists as a legal entity (since its existence is established in the CC&Rs which don't go anywhere unless steps are taken to make them go away) but it can't do business as a corporation.

But I'm not clear on all of the implications (other than loss of insurance) since we do our best never to accidentally find out. ;-)

AugustinD


Posts:1695


07/25/2021 9:17 AM  
Posted By CathyA3 on 07/25/2021 8:22 AM
In my state - which may operate differently from Missouri - there is a difference between an HOA being dissolved vs. losing its corporate status due to failing to file the proper forms on schedule. In the latter case, the HOA still exists as a legal entity (since its existence is established in the CC&Rs which don't go anywhere unless steps are taken to make them go away) but it can't do business as a corporation.

But I'm not clear on all of the implications (other than loss of insurance) since we do our best never to accidentally find out. ;-)
"Dissolution" comes up from time to time here. I feel there is lots of misunderstanding about what it means. I know an attorney in my own town who thought the way many folks here are thinking, until he was sent to the statutes.

I am posting to try to get some facts out about what "dissolution" does and does not mean. "[C]an't do business as a corporation" is not how I would explain what "dissolution" means. The powers of a "dissolved" corporation are extensive. These powers revolve around "winding up" (a statutory term used also in case law) the affairs of the corporation. The period of "winding up" is either frequently not defined or is a very long time. In Ohio, statute section 1701.88 and a few other statute sections talk about what "dissolved" corporations can do. For example:

-- Start excerpt from Ohio statute section 1701.88 --
The directors of the corporation and their successors shall act as a board of directors in accordance with the articles and regulations until the affairs of the corporation are completely wound up. Subject to the orders of courts of this state having jurisdiction over the corporation acting pursuant to section 1701.89 of the Revised Code, the directors shall proceed as speedily as is practicable to a complete winding up of the affairs of the corporation. For that purpose, the directors may exercise all the authority of the corporation. Without limiting the generality of such authority, they may do all of the following:

(1) Fill vacancies;

(2) Elect officers;

(3) Appoint agents, liquidators, or other entities or persons to carry out the winding up of the corporation's business;

(4) Carry out contracts of the corporation;

(5) Make new contracts;

(6) Borrow money;

(7) Mortgage or pledge the property of the corporation as security;

(8) Sell its assets at public or private sale;

(9) Make conveyances in the corporate name;

(10) Lease real estate for any term, including ninety-nine years renewable forever;

(11) Settle or compromise claims in favor of or against the corporation;

(12) Employ one or more persons as liquidators to wind up the affairs of the corporation with such authority as the directors see fit to grant;

(13) Cause the title to any of the assets of the corporation to be conveyed to such liquidators for that purpose;

(14) Apply assets to the payment of obligations;

(15) Distribute the remainder of the assets either in cash or in kind among the shareholders according to their respective rights and interests after paying or adequately providing for the payment of all known obligations of the corporation under section 1701.882 of the Revised Code and for claims that have not been made known to the corporation or that have not arisen but that, based on facts known to the corporation, are likely to arise or to become known to the corporation within five years after the date of dissolution or such longer period of time as the directors or a court acting under section 1701.89 of the Revised Code may determine, not to exceed ten years after the date of dissolution;

(16) Perform all other acts necessary or expedient to the winding up of the affairs of the corporation.
=== End Excerpt ===


In 2019 a developer where I am needed to purchase a "ransom strip" of land, about 300 feet x 10 feet, from a corporation that had dissolved over 30 years ago. The developer needed this land for purposes of constructing a city-required drainage ditch. (he city also initially messed up about who owned this strip of land. When some 'interested neighbors' pointed it out, the city attorney went ballistic on the developer. The plats properly recorded the strip of land and that the dissolved corporation still owned it. In fact the dissolved corporation owns a number of such strips all over my town. Only one of the dissolved corporation's three directors remained alive, and then there were several heirs to the other two directors. The sole living director is an attorney; informed the developer to quit trespassing; and negotiated sale of the strip of land, with the proceeds going to himself and the heirs. Hence my education on the subject of the rights of a "dissolved" corporation.

The issue of property taxes came up. I am not sure how this resolved.

This is largely about property rights. The state does not just take away a dissolved corporation's property rights. Much more has to happen before a dissolved corporation loses title to property.
MaxB4


Posts:1395


07/25/2021 9:57 AM  
Two long winded posts and this only has to do with possible suspension, not dissolution.
CathyA3
(Ohio)

Posts:2475


07/25/2021 10:49 AM  
Posted By MaxB4 on 07/25/2021 9:57 AM
Two long winded posts and this only has to do with possible suspension, not dissolution.



Some of us were those little kids who took stuff apart to see how it worked. :-)

Anyway, most OPs probably want a basic answer to "what should I do" and won't be interested in theory unless their situations are more complicated than they look on the surface. Theory is interesting for those who like to understand principles and to see whether or not the answer to the OP's question can be applied to similar situations.

I'll try to remember to label my theoretical posts "Down the Rabbit Hole" so people can skip them if they're not interested.


MaxB4


Posts:1395


07/25/2021 10:53 AM  
Posted By CathyA3 on 07/25/2021 10:49 AM
Posted By MaxB4 on 07/25/2021 9:57 AM
Two long winded posts and this only has to do with possible suspension, not dissolution.



Some of us were those little kids who took stuff apart to see how it worked. :-)

Anyway, most OPs probably want a basic answer to "what should I do" and won't be interested in theory unless their situations are more complicated than they look on the surface. Theory is interesting for those who like to understand principles and to see whether or not the answer to the OP's question can be applied to similar situations.

I'll try to remember to label my theoretical posts "Down the Rabbit Hole" so people can skip them if they're not interested.





PLEASE don't think I was referring to you.
AugustinD


Posts:1695


07/25/2021 10:58 AM  
Posted By MaxB4 on 07/25/2021 9:57 AM
Two long winded posts and this only has to do with possible suspension, not dissolution.
Posted By DakotaS on 07/24/2021 11:24 AM
So I reached out to his fight club and they pointed out that our HOA has filed the annual registration with the secretary of state since 2018. Because if this they apparently cannot conduct business. If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?
Posted By MaxB4 on 07/24/2021 4:59 PM
if you don't file your corporate forms to either the state tax board of your state or the SOS office, they can place you on suspension, meaning, you can no longer defend or prosecute on behalf of your association.
Wrong.
MelissaP1
(Alabama)

Posts:10534


07/25/2021 11:01 AM  
I already saw this going down the rabbit hole... Basically the whole post is about someone getting fined for something they did not think they should be fined for. Instead of going to the HOA with proof and direct wording from their bylaws/CC&R's to "fight" the fine, they want to go down a whole other rabbit hole.

Simply put, if you get a fine either pay it or discuss it with the board. Now what we have is the whole HOA needs to be banned and is illegal? Come on now people... Being too scared to go to your own board to discuss an issue doesn't mean it's other people's problem or HOA's. It's you got to put you big boy/girl pants on and take it to the board.

Former HOA President
DakotaS
(Missouri)

Posts:41


07/25/2021 11:09 AM  
Posted By MelissaP1 on 07/25/2021 11:01 AM
I already saw this going down the rabbit hole... Basically the whole post is about someone getting fined for something they did not think they should be fined for. Instead of going to the HOA with proof and direct wording from their bylaws/CC&R's to "fight" the fine, they want to go down a whole other rabbit hole.


Simply put, if you get a fine either pay it or discuss it with the board. Now what we have is the whole HOA needs to be banned and is illegal? Come on now people... Being too scared to go to your own board to discuss an issue doesn't mean it's other people's problem or HOA's. It's you got to put you big boy/girl pants on and take it to the board.




Are you stupid because you sound stupid?
This post is much bigger than a damn fence. I did ask how to fight the fine because I've already pointed out in the restrictions and amendments what it says about offenses and I'm not breaking any fence rules. They say I am how do you fight that if I literally tell you the sky is blue and you say no it's not it's green and we have documentation that says it's blue and you continually say it's green anyway how do you fight that that's the question?
The other issue is the fact that the board has not been elected the community has not elected board members in over a decade. If they're not elected they should be removed and an election should be held in a proper fashion. If you can't understand that as an HOA president you're obviously part of the problem that so many HOAs have issues with.
The other thing I said was that our annual registration is not even current it has not been filed since 2018 according to this non-profit I'm working with regarding this issue they cannot conduct legal business without this being current. Now instead of thinking you know things that you clearly do not and making crazy ass assumptions based on nonsense why don't you first read and get the facts. This forum has some good people on it but it also has some very ignorant arrogant people that just need to find another home
DakotaS
(Missouri)

Posts:41


07/25/2021 11:11 AM  
Posted By MaxB4 on 07/25/2021 10:53 AM
Posted By CathyA3 on 07/25/2021 10:49 AM
Posted By MaxB4 on 07/25/2021 9:57 AM
Two long winded posts and this only has to do with possible suspension, not dissolution.



Some of us were those little kids who took stuff apart to see how it worked. :-)

Anyway, most OPs probably want a basic answer to "what should I do" and won't be interested in theory unless their situations are more complicated than they look on the surface. Theory is interesting for those who like to understand principles and to see whether or not the answer to the OP's question can be applied to similar situations.

I'll try to remember to label my theoretical posts "Down the Rabbit Hole" so people can skip them if they're not interested.


I don't mind going down the rabbit hole and learning honestly I feel like I need to know all I can in order to solve some of our current issues in our HOA.
AugustinD


Posts:1695


07/25/2021 11:14 AM  
Posted By [SNL's Emily Litella] on 07/25/2021 11:01 AM
Now what we have is the whole HOA needs to be banned and is illegal?
Posted By DakotaS on 07/24/2021 11:24 AM
our HOA has [not] filed the annual registration with the secretary of state since 2018. Because if this they apparently cannot conduct business. If this is accurate couldn't the community get together and file it as the acting HOA and basically create a new board? How would this work?
Posted By [SNL's Emily Litella] on 07/25/2021 11:01 AM
Oh, that's very different. Never mind.
MelissaP1
(Alabama)

Posts:10534


07/25/2021 11:32 AM  
Yep. Sometimes you can just expose the reason some people don't make progress in their HOA's...

Former HOA President
DakotaS
(Missouri)

Posts:41


07/25/2021 11:35 AM  
Posted By MelissaP1 on 07/25/2021 11:32 AM
Yep. Sometimes you can just expose the reason some people don't make progress in their HOA's...




Hardly I've seen you on here several times you always make backhanded snarky comments and you offer little insight. I have to imagine that dealing with people like you is why most people don't like being in an HOA. I just tell it how I see it if you don't like honesty then that's on you. Now since you haven't offered anything of substance to this conversation why don't you run along and allow the others to converse and offer insight. Thank you
MaxB4


Posts:1395


07/25/2021 11:51 AM  
Posted By DakotaS on 07/25/2021 11:35 AM
Posted By MelissaP1 on 07/25/2021 11:32 AM
Yep. Sometimes you can just expose the reason some people don't make progress in their HOA's...




Hardly I've seen you on here several times you always make backhanded snarky comments and you offer little insight. I have to imagine that dealing with people like you is why most people don't like being in an HOA. I just tell it how I see it if you don't like honesty then that's on you. Now since you haven't offered anything of substance to this conversation why don't you run along and allow the others to converse and offer insight. Thank you



WOW, now that truly deserves a standing ovation.
CathyA3
(Ohio)

Posts:2475


07/25/2021 11:53 AM  
One thing all of the legal citations do is help show why getting courts involved can have unpredictable results, in addition to costing an arm and a leg. This means it's usually in a person's best interest to solve their problem without going that route, if at all possible.

I agree that the fence issue sounds easy if the CC&Rs don't say anything about fences or fines. Put it in letter stating exactly that and that you will go to court if the board persists, send certified return receipt, and with luck that will be the end of it.

Resolving the other stuff means legal action for sure, and hopefully DakotaS has a competent and honest lawyer who can assess the situation and explain what fighting it will mean (time, money, stress, increased assessments, ticked off neighbors, unpredictable outcome, etc.). The reality is that legal action is expensive, can drag on for years, and a plaintiff won't necessarily get the outcome they want. Anyone considering this route needs to be very sure that they're up for whatever is coming their way - it's not a decision to make lightly.
MaxB4


Posts:1395


07/25/2021 12:02 PM  
I have been in this business for 13 years and have been to Small Claims Court ten times all for delinquent assessments, never for any of this nonsense. Why is someone fixated with lawyers and law suits.
DakotaS
(Missouri)

Posts:41


07/25/2021 12:23 PM  
Posted By MaxB4 on 07/25/2021 12:02 PM
I have been in this business for 13 years and have been to Small Claims Court ten times all for delinquent assessments, never for any of this nonsense. Why is someone fixated with lawyers and law suits.





Which part is nonsense? We have a board that hasn't been elected they are paying the treasurer which is a volunteer position they are fining people for things that are not against the rules and the president the treasurer carry around cash that is subdivision property and use it whenever they feel like. I and a few others have seen this take place. They also don't maintain the common areas and they silence anybody who doesn't agree with them.
I think these things are legitimate reasons to fight back
MaxB4


Posts:1395


07/25/2021 12:28 PM  
Going from experience, courts are not your friend.
MelissaP1
(Alabama)

Posts:10534


07/25/2021 12:53 PM  
It's "They/Them" quandry. It's never "What can I do?" conversation is it? A HOA is ONLY YOU and your neighbors. There are no "They or Them". So if you don't like what is going on then get in and DO THE WORK! Stop wanting to take your HOA to court or hire a bunch of lawyers.

If you have problems with your HOA, then you take the steps that are defined in your CC&R's, by-law, or Article of Incorporation. I find it funny that people want their HOA's to "Follow the rules" except not once have those people tried to do that themselves.

For the record my HOA sucked when I moved in and became a member. What did I do? Ran for Vice-President then got elected as President the next year. I went back to following the rules. Even so much as bringing them to each and every meeting. You asked me a question I could quote those rules backwards and forward. Any written response included references to them.

So if you thought the HOA wasn't applying the rules, simply come to the OPEN meeting and express the FACTS. Don't go to a website to complain about your HOA or find ways to surprise attack it with legal woes. Your just setting yourself up for failure and egg on your face...

Former HOA President
DakotaS
(Missouri)

Posts:41


07/25/2021 1:05 PM  
Posted By MelissaP1 on 07/25/2021 12:53 PM
It's "They/Them" quandry. It's never "What can I do?" conversation is it? A HOA is ONLY YOU and your neighbors. There are no "They or Them". So if you don't like what is going on then get in and DO THE WORK! Stop wanting to take your HOA to court or hire a bunch of lawyers.

If you have problems with your HOA, then you take the steps that are defined in your CC&R's, by-law, or Article of Incorporation. I find it funny that people want their HOA's to "Follow the rules" except not once have those people tried to do that themselves.

For the record my HOA sucked when I moved in and became a member. What did I do? Ran for Vice-President then got elected as President the next year. I went back to following the rules. Even so much as bringing them to each and every meeting. You asked me a question I could quote those rules backwards and forward. Any written response included references to them.

So if you thought the HOA wasn't applying the rules, simply come to the OPEN meeting and express the FACTS. Don't go to a website to complain about your HOA or find ways to surprise attack it with legal woes. Your just setting yourself up for failure and egg on your face...




So I think your comment makes a lot of sense but please understand that me and a lot of others don't really know what to do and are learning. I can tell you this and this seems to confuse others as well we have what is called 1956 restrictions and then 1966 was when the corporation that created our subdivision sold it to the community members and we have 1966 agreements and amendments from then on there are a handful of amendments that were created from 66 to present and there is easement paperwork that is everything the county has. We do not have separate bylaws or articles of incorporation I have been told we are supposed to but we do not. Our paperwork that we do have does not say how to remove a board member other than it says the board can vote to remove a person if they are deemed incompetent by the board it says absolutely nothing about how the community can remove a board member. I have read every single document the county has several times I can also tell you what they say backwards and forwards I have done everything I can do with the information I have been given unfortunately the information we have has a lot of holes in it a lot of unanswered questions. It's hard to do in a forum setting but I would be willing to email anybody who is genuinely curious what our restrictions and all of that actually say about elections and different topics.
Even with the fencing it does not say anywhere in our restrictions anywhere that no lakeside fences are allowed however that is the reason they're finding me because I have a lakeside fence that is 2 ft 11 in tall. It does say that you can have a fence that's 3 ft or under and if you want to taller fence you must get approval the way it is written reads that if you have a fence 3 foot or under you don't even have to get approval. There are some setback requirements but those are simple enough to follow. But the reason I'm being fined is because no lakeside fences however again it does not say that anywhere. Our board back in 2018 created a summary of the rules mind you this summary says things that the restrictions do not say at all this summary has also not been filed with the county and was never voted on by the property owners. So I am pretty sure that the summary is invalid and does not matter.
I would rather not get a lawyer or an attorney involved but our paperwork is such a mess and has so many holes in it I don't know what else to do but to ask an attorney for their professional opinion. I understand that I can appeal the fine but I'm appealing it with the same corrupt people that fined me in the first place. They will just say it is valid. I asked this a few comments up if I say the sky is blue and you say the sky is green but we have documentation saying the sky is blue and you still persist to say the sky is green how do you win that argument? You can't fix stupid as they say. The only thing I would know to do is that if they just say I'm wrong I have to pay a fine is to take it to court and beat it what other option do I have at that point? I'm willing to listen to your advice and your input but the situation I'm in is a pretty crazy one these folks don't listen to logic or reasoning. My main objective is obviously beating the fine and then having the board members removed and having a new election take place to put in new board members that are competent and not corrupt. How I do that I'm not 100% sure but I do believe that's what needs to be done.
MelissaP1
(Alabama)

Posts:10534


07/26/2021 4:53 AM  
Number 1. Most HOA's a general membership can NOT remove a board member. It is the board that has to do that. The general memberships votes in the board members. The board members then decide amongst themselves to elect to officer positions. Some HOA's the board can replace an empty position amongst the membership. The membership can recall a board or directors. The board members remove the officers.

It sounds like a misinterpretation here on the fence allowance. Are fences allowed in the area of the lakeside? Many HOA's with lake access do not allow fences on that side or within a certain egress. So I can see how the fence is being considered a violation after all. What you seem to be describing is a fence location issue than an existance issue.

If you want to find out about how to run a HOA you go to your documents good or bad. If they are bad, then you find out what it takes to make the changes you all want to make. Once you get those votes and changes documented, then go to the courthouse and file them. They are not legal till officially filed. Which does cost money. Plus a lawyer should be involved with making sure it is legal what is written. Plus they help with the filing process.

So no I am not the "idiot crazy" person you think I am. I've been down this road before and wearing the T-shirt. Many others here are as well. Sometimes you need to slow your roll and listen...

Former HOA President
CathyA3
(Ohio)

Posts:2475


07/26/2021 5:35 AM  
Posted By MelissaP1 on 07/26/2021 4:53 AM
Number 1. Most HOA's a general membership can NOT remove a board member. It is the board that has to do that. The general memberships votes in the board members. The board members then decide amongst themselves to elect to officer positions. Some HOA's the board can replace an empty position amongst the membership. The membership can recall a board or directors. The board members remove the officers.

It sounds like a misinterpretation here on the fence allowance. Are fences allowed in the area of the lakeside? Many HOA's with lake access do not allow fences on that side or within a certain egress. So I can see how the fence is being considered a violation after all. What you seem to be describing is a fence location issue than an existance issue.

If you want to find out about how to run a HOA you go to your documents good or bad. If they are bad, then you find out what it takes to make the changes you all want to make. Once you get those votes and changes documented, then go to the courthouse and file them. They are not legal till officially filed. Which does cost money. Plus a lawyer should be involved with making sure it is legal what is written. Plus they help with the filing process.

So no I am not the "idiot crazy" person you think I am. I've been down this road before and wearing the T-shirt. Many others here are as well. Sometimes you need to slow your roll and listen...




Slight correction here: the membership CAN remove a board member, but they have to go through the recall process which generally involves calling a special meeting for the purpose, providing timely notice, and having a vote (state laws can vary and they're often pretty precise - no short cuts or the removal is invalid).

Board members also can appoint someone to an unfilled director position. In some states, the membership can't remove this person, only the board can.

What the membership usually can't do is remove a person from their officer position (president, secretary, etc.) - that's up to the board.

I think the OP is doing the right thing by consulting a lawyer. I still can't get a handle on the rights and wrongs here. Usually dealing with violations is a multi-step process: first notification to the owner (often more than one notification), followed by an opportunity for the homeowner to present their side of the story and hopefully to resolve things. Fining only starts after this process has failed: eg. the homeowner doesn't respond to communications from the HOA or refuses to correct the violation.

I''ll repeat something I and others have said: it's MUCH cheaper and less stressful to resolve problems without involving the legal system. Too many people get so caught up in being angry at their HOA that the legal fight takes on a life of its own, and they pursue the fight even though the cost (in time, money, and other negative consequences) far outweighs any benefit they'll receive. At some point, you have to ask: just how much is this fence worth to you? It can be hard to boil down emotional issues to dollars and cents, but doing so can help you avoid much pain and misery. (I vaguely remember reading somewhere about a homeowner who can't retire because she spent too much money fighting her HOA. Don't be that homeowner.)



JohnT38
(South Carolina)

Posts:768


07/26/2021 5:45 AM  
"Number 1. Most HOA's a general membership can NOT remove a board member."

Wrong.
MaxB4


Posts:1395


07/26/2021 9:22 AM  
Posted By MelissaP1 on 07/26/2021 4:53 AM

So I am not the "idiot crazy" person you think I am. I've been down this road before and wearing the T-shirt.



DakotaS
(Missouri)

Posts:41


07/26/2021 9:31 AM  
Posted By CathyA3 on 07/26/2021 5:35 AM
Posted By MelissaP1 on 07/26/2021 4:53 AM
Number 1. Most HOA's a general membership can NOT remove a board member. It is the board that has to do that. The general memberships votes in the board members. The board members then decide amongst themselves to elect to officer positions. Some HOA's the board can replace an empty position amongst the membership. The membership can recall a board or directors. The board members remove the officers.

It sounds like a misinterpretation here on the fence allowance. Are fences allowed in the area of the lakeside? Many HOA's with lake access do not allow fences on that side or within a certain egress. So I can see how the fence is being considered a violation after all. What you seem to be describing is a fence location issue than an existance issue.

If you want to find out about how to run a HOA you go to your documents good or bad. If they are bad, then you find out what it takes to make the changes you all want to make. Once you get those votes and changes documented, then go to the courthouse and file them. They are not legal till officially filed. Which does cost money. Plus a lawyer should be involved with making sure it is legal what is written. Plus they help with the filing process.

So no I am not the "idiot crazy" person you think I am. I've been down this road before and wearing the T-shirt. Many others here are as well. Sometimes you need to slow your roll and listen...




Slight correction here: the membership CAN remove a board member, but they have to go through the recall process which generally involves calling a special meeting for the purpose, providing timely notice, and having a vote (state laws can vary and they're often pretty precise - no short cuts or the removal is invalid).

Board members also can appoint someone to an unfilled director position. In some states, the membership can't remove this person, only the board can.

What the membership usually can't do is remove a person from their officer position (president, secretary, etc.) - that's up to the board.

I think the OP is doing the right thing by consulting a lawyer. I still can't get a handle on the rights and wrongs here. Usually dealing with violations is a multi-step process: first notification to the owner (often more than one notification), followed by an opportunity for the homeowner to present their side of the story and hopefully to resolve things. Fining only starts after this process has failed: eg. the homeowner doesn't respond to communications from the HOA or refuses to correct the violation.

I''ll repeat something I and others have said: it's MUCH cheaper and less stressful to resolve problems without involving the legal system. Too many people get so caught up in being angry at their HOA that the legal fight takes on a life of its own, and they pursue the fight even though the cost (in time, money, and other negative consequences) far outweighs any benefit they'll receive. At some point, you have to ask: just how much is this fence worth to you? It can be hard to boil down emotional issues to dollars and cents, but doing so can help you avoid much pain and misery. (I vaguely remember reading somewhere about a homeowner who can't retire because she spent too much money fighting her HOA. Don't be that homeowner.)






Our fence guidelines do not say no lake side fences. It says a fence 3ft or shorter is allowed and if someone wants a taller fence they have to get approval from the board. It also says in set back rules that it has to be 5ft off the property line on the sides and 15 ft behind your front line and cannot be built in front of your building line. That's literally all it says. If you'd like I could probably upload the page so you can see exactly what it says word for word.
MelissaP1
(Alabama)

Posts:10534


07/26/2021 10:29 AM  
I still do not think because not exclusively mentioned means allowed. Are all the houses on the lake? If not then lake houses may have different allowances. Even with what you wrote does not lend me to think it is allowed.

Former HOA President
DakotaS
(Missouri)

Posts:41


07/26/2021 10:45 AM  
Posted By MelissaP1 on 07/26/2021 10:29 AM
I still do not think because not exclusively mentioned means allowed. Are all the houses on the lake? If not then lake houses may have different allowances. Even with what you wrote does not lend me to think it is allowed.





If it's not allowed doesn't it have to say it's not allowed otherwise it's just making stuff up? No not all houses are on the lake but a good majority of them are. But there's no separate rules for where a house is located we have a one size fits all restrictions and amendment page. If it doesn't in some fashion say no lakeside fences how can they be not allowed? That doesn't make sense. The restrictions do not stipulate where a fence can and cannot be except to say they can't be in front of the building line and they have to be 15 ft behind the front line and 5 ft off either side of property line that is the only stipulations it gives for where they can and cannot go.
It's also worth mentioning that an attorney got back to me and agreed with me that lakeside fences are permitted
AugustinD


Posts:1695


07/26/2021 10:57 AM  
Posted By DakotaS on 07/26/2021 10:45 AM
If it's not allowed doesn't it have to say it's not allowed otherwise it's just making stuff up?
Correct.

Furthermore, fwiw, if the courts find a covenant is not clear about prohibiting xyz and is in fact "ambiguous" about prohibiting xyz, then the HOA may not prohibit xyz. Not that there's any ambiguity here. More that, for a covenant to be enforceable, the covenant must be clear when it says something is not allowed. Logically then the complete absence of a prohibition on xyz means xyz is allowed.

It's also worth mentioning that an attorney got back to me and agreed with me that lakeside fences are permitted
Great.


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