Unanimous Consent to re-paint?
Dennis,
At our 3/29/2023, open board meeting, our board posted a slide titled “Unanimous Consent Affirmation.” There were two items, but one, in particular, struck me as odd. It stated “Guard Rail Painting Authorization: Request to approve the painting of all drainage guard railing in common areas & private lots by owners or their designee in colors approved by the ARC. Approval received on 3/24/2023.”
To me, this seems like abuse of the “unanimous consent” powers reserved for emergencies that cannot wait until the next open board meeting — in this case, an open board meeting was happening just 5 days later! In contrast, re-painting happens every ~8 years or so. Plus, it appears that they have selected homeowners to do this, or maybe assigned responsibility to homeowners for taking care of community property on their lots. I really don’t care for my HOA board to create new obligations of homeowners that are not spelt-out in the CCRs (vis-à-vis Kalway).
Over the past week or so, members in our community noticed the board president and the husband of the treasurer out painting these things. So they had already started the work prior to the open board meeting.
Could you please share your thoughts on this? And, if I were to file an ADRE complaint, what would be the best statute statement to target?
Thank you
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Fish 7,
Your board has to understand that making good decision for the community does not justify ignoring the open meeting laws for these communities. Despite whatever their community manager or attorney tells them about what their community documents or the non-profit corporation statutes state about “Action without a meeting” the open meeting laws for these communities supersede all of those documents. Action without a meeting is only authorized for these communities for emergency meeting of the board that cannot wait for the 48 hours needed for advance notice of any board action. You cannot take a provision of the non-profit corporation act that has no open meeting requirement and say that it can be used in these communities that do have open meeting laws, just because they are incorporated as NPC. Well intentioned boards are continuously getting bad advice from their advisors and then they are held accountable for that bad advice. All to the detriment of the homeowners in the community. The source of that bad advice is never held accountable. Like I’ve offered in the past I’ll gladly meet with your board and community to help them understand the truth of the law and their responsibilities under the law. Litigation helps no-one and the homeowners always lose. Your community does not need more litigation from you. I hear from several different members of your community every time you post a question of this site. Your board needs to learn the truth of the law and hold themselves accountable to that law. But the most important thing is that the board act in the best interest of the community as a whole, and that they work to build trust in their community between the board and the homeowners. From what people tell me they have achieved that goal, while you have not. Being right is not everything in these communities. While I’ll never condom violations of the law, that I’ve worked so hard to build on especially the open meeting laws.
The purpose of the open meeting laws is to ensure transparency in the business of the community and to ensure that the members have an opportunity to speak and weigh-in on possible decision of the board before the decisions are made, so that trust can be built. Allowing the members an opportunity to provide input to the board on decisions ensures that the board decisions are made in the best interest of the community as a whole. As I see it, you have built so much animosity between yourself and the board and the rest of your community that even if you are right no-one will listen to you.
I will always give anyone that ask me a question the truth about the law, and I’ve always supported holding the boards accountable to the law, but litigation needs to be the last resort and not the first. There is a cause and effect to every action and the consequences of any actions need to be considered. If you truly cared for the interest of your community, you should take a long hard look at your own actions and how you have contributed to the discord in your community before you cause more discord because the board does not yet understand the law. This has become a situation of you against the world and being right and everyone else wrong is your mission. I’ve confirmed the truth of your position but I will not support you filing a petition with ADRE on this issue.
Dennis
I am not sure that ANY homeowner wants to litigate. First, there are many other things to spend our money on. Second, there are many other things we would like our HOA dues spent on. Like you said, the homeowner loses. It is time consuming and an emotional drain.
Unfortunately, many homeowners must resort to filing a small claims case or ADRE as a means to talk to their Board. When emails were ignored and requests for a hearing at an open meeting were denied, I took my issue to Small Claims Court and was made whole. I do not regret this as I saw no other way.
Whether it is small claims court, or ADRE, Boards should look at this as an opportunity to connect with their homeowners. Meet and resolve the issue. Small Claims court and ADRE can be dropped as resolved, with no guilt needing to be admitted by either party. Boards need to realize that taking an action like this is a cry to be heard. When the homeowner can represent themselves in both Small Claims Court and ADRE, it is very wasteful that Boards can spend homeowner dues on lawyers to defend their actions. The Board is who takes this to litigation, the homeowner often wants mediation.
Many homeowners back down and let another fight the battle against a rogue tyrannical Board. I know I let Mr. Fish do this fight for me. I grew tired of the attacks by the Board. I am sure the current Board members watch these posts……they are as much at fault, if not more, as they have the choice to litigate or not, a choice to use HOA dollars to defend actions they should defend themselves or simply to mediate with the homeowner. If Boards want to heal the community, they have the power to do so. Yes, they can have you come to an Open Board meeting and help this.