Homeowner Precedence for Voting Rights
I have been in the same community/HOA for 20+ years. Recently the board decided that it is not a requirement to get a community vote for landscaping changes even though this has been the operational precedence for many years. Homeowners historically reviewed costs and then voted for changes to common areas prior to the HOA making any changes. A very contentious exception to this occurred in 2018 and resulted in the removal of the entire board due to their unilateral decision to spend thousands of dollars (more than $40K) to fence off a common area on the west end of the lake without a vote of homeowners. This change was not only costly but also prevented homeowners not on living on the lake from accessing the lake in what was once a nice picnic area, limiting all lake access only to the east end boat dock area. The board removal was also due to the selective maintenance approach, spending money to for improvements in certain common areas (where board members lived) while completely ignoring critical repairs and maintenance in other common areas. History is repeating itself. There is a common area that since the 2018 board removal has been on the list for repairs and maintenance but they have allowed it to completely degrade. There was a detailed presentation done in Nov 2021 to the board where they promised to get quotes to make repairs but nothing has been done to date other than some renderings for a completely new design. The board is now operating under the premise that homeowners do not need to vote for the new design which completely changes common area and is an impact to homes that border this park and in addition to the added costs of redesign vs just doing the needed repairs. There seems to be a new interpretation of “intent’ for our CC&Rs which have not changed since incorporation and upon which homeowners voted for all changes in landscaping for our common areas up until 5 years ago when we removed the board and now again (where ironically a removed board member’s spouse now serves as President). There are other new problems as well, a recent reserve study shows significant under funding of reserves, the board is raising dues to the max level allowed and doing a special assessment. In summary, the board is denying homeowners voting rights for significant cost/changes to common areas, the board has completely ignored maintenance in some common areas while spending money to make improvements in others and now they are short on funding. The question is: does precedence of prior operations of an HOA for homeowner voting rights carry any weight for this new interpretation of our CC&Rs that has eroded the checks & balances for spending and community maintenance. Any guidance on steps to mitigate this situation? Thanks for your help.
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Cathryn,
The power of your board to make decisions relative to the common area is typically defined in your governing documents. Since you are an HOA or Planned community title for the common area actually belongs to the association represented by the board of directors elected by you. There are no, nor should there be any state law dictating how a board can use the common property that they own. That being said the money they spend all comes from your pockets and you have an absolute right to provide input to the board before they make any decision to spend any of that money. That is why the open meeting laws exist that guarantee your right to speak at a meeting before any vote is taken by the board. You actually do not have any right to vote to approve that expenditure, unless that was to be funded by a special assessment outside the normal budgeting process. I know this is not what you wanted to hear but it is fact and is supported by both case and common law.
You always reserve the right to recall any board member that refuses to make decisions that are in the true best interest of the community as a whole as you did with the prior board. Board recall efforts are difficult at best, but it sounds like there are many issues happening here and it is time to set the board straight on who they actually work for. Sometimes a recall petition is enough to wake up the board and start listening to the members of the community they have been entrusted to run. If they don’t wake up recall them all and replace them with board members that will have a better understanding of their obligations to the community.
Dennis
If you want to send me a copy of your CC&R’s and bylaws, I’ll look them over for you and provide you my insight on any other option you may have.
Dennis