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Board Ineligibility

Dennis

We have an election coming up… the board has this in the information notice: “Being a member who is not delinquent on assessments is a requirement for serving on the Board (Bylaws 4.5). ”

Notice the small “A” on “assessments… this means it can be the annual Assessment or any other thing the board wishes to assess Members for. Our CCRs very clearly define “Assessment” (capital A”) to mean only the Annual Assessments.

Bylaw 4.5 says “No individual shall continue to serve on the Board if such individual is more than thirty (30) days delinquent in the payment of an Assessment, and such delinquency shall automatically constitute a resignation by such director on the thirty-first (31st) day of the delinquency”

Notice the capital “A” again on the word “Assessment”.

Can the board expand the Bylaw like that? I ask, because our board is notorious for coming up with “assessments” that are not found in the bylaws, CCRs, nor annual budgets, and I fear they will use this to push people off the board at their whim by doing a bogus assessment that someone then tries to fight and, while they are fighting it, they boot that person off the board.

Your thoughts?

Thanks

4 Responses

  1. Dennis Legere

    Fish7
    Unfortunately, you are absolutely correct. it would be very difficult to claim that the capitalization of “A” would have any significance in law. I fully understand what you are saying and am trying to work some legislation that would work on distinguishing common expense assessments from any other assessments that the association may impose on a homeowner. The focus in this year’s proposed legislation will only be in the area of the lien and the foreclosability of that lien relative to common expense assessments and any other type of assessments. The problem is that most CC&R’s, and the current law use the same term to describe both types of assessments and the association attorneys work on taking advantage of that fact. Once I can clearly establish in statute the difference between the two, then I can work on the eligibility to vote and run for office. Many associations have what they call good standing which equates to current on assessments and no violations relative to voting and that is wrong. While common expense delinquency is objective and factual violation are very subjective and often used to disqualify anyone. The board can decide that anyone that criticizes them is causing a nuisance and cites them with a bogus violation for the sole purpose of eliminating their ability to vote or be on the board. Violations are far too subjective and vulnerable to abuse to be a criterion for eligibility to vote or serve on the board. The only way to fix this is to do it within statutes. I actually had it in a bill I drafted two years ago but that bill was withdrawn by the sponsor based on concerns from the HOA industry. Something for another year.
    Dennis

  2. Fish7

    Dennis,

    Thanks for your reply.

    I have to say, I’m a little surprised by “it would be very difficult to claim that the capitalization of ‘A’ would have any significance in law.”

    Article 1 (DEFINITIONS) in our CCRs defines reserved words that are used throughout our CCRs and Bylaws. It specifically capitalizes them so that readers know a special meaning is intended, as opposed to some general meaning, when they are read. Words and phrases are capitalized, such as Member, Owner, Property, Visible from Neighboring Property, etc.

    I would think those CCR-defined definitions would stand in a court of law.

    Maybe I’m wrong… Just surprised.

    Thanks.

    1. Dennis Legere

      Fish7,
      While you are correct that terms defined in CC&R’s would carry weight in court but unless they provided a definition of assessment with both capitalized and uncapitalized versions you have no legal basis that the capitalized version only applies to common expense assessments and the uncapitalized version only applies to every other type of assessments including fees fines and penalties. While I believe that your logic is sound, it is simple a presumption and not conclusive proof.
      Dennis

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