two hints to fight doubtful HOA fines
My HOA, established in the mid-80s, came with a simple set of CC&Rs, basically common sense for a little middle-class community, self-managed for many years since I moved in. Unfortunately, a bunch of “activists” took over at some point, and they started to force their vision and imaginary rules on members.
Those activists are afraid of one thing, though: being exposed to the public. Shortly after I was elected to the board, they went after me with an absolutely bogus violation, claiming I had done a hardscape change without board approval, all things pulled from the distant past, probably banking that those documents had been lost (and indeed are missing in my lot file.) But I kept the copy and have witnesses.
So, I requested per 33-1804/A/5 1) to have a hearing held in an open meeting. After ignoring my request for months, they finally organized it, fining me in the meantime, of course (which is illegal). During the hearing, they were not interested in listening to my evidence whatsoever and just ignored anything I had to say as well as an approval and emails I presented, which proved my point.
One crucial thing, if not mistaken, according to 33-1804/A/5, the board’s deliberations also must take place in the open meeting. In my case, they had it in the closed session, which I believe is a serious violation of the statute.
One thing I learned on this priceless site is having a right to see the full lot file. I requested it, and key documents for my case are missing. I immediately requested to get it fixed, to no avail. While my case is far from the end, I think all of the above will only help to prove the board’s wrongdoing in case the whole thing ends in court.
I will keep this thread posted.
1) 33-1804/A/5 says, “Discussion of a member’s appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.”
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Andy,
Based on well established case and common law the association has two fundamental duties to the homeowners to treat them fairly and to act reasonable in their discretionary rule-making and enforcement authority. The board of directors have a duty to the association to comply with the law, and that compliance is not optional.
The association has no authority to apply any fine until the homeowner has had an opportunity to be heard. You fact are clear and the board would be in breach of duty to ignore your fact and evidence in their enforcement review. The law is also clear that it is the homeowners choice to have any appeal in either an open or closed session.
You have a right to file a petition to ADRE to enforce the law. You have a ligitimate case against your association based on the fact presented in the note.
Dennis
Hi Dennis,
Thanks for the prompt reply. I need to self-correct myself a bit, or rather add a detail, which does not change the big picture, though.
For many, many years we were self-managed and lived in a civil and peaceful community until a newly elected “activist” board hired a property-management company. The company was relatively ethical, with no major issues. This is when my hardscape – after receiving an approval – was changed/improved. Fast forward to a few years ago, the board was not happy with their services and contracted a new one, way more “aligned” with their “enforcement” mindset. This is when I ran for the board and was voted in, with a goal to bring things back to sanity. And this is when they went after me.
There are many more apparent wrongdoings on the account of the board&PP tandem than in my case, actually. The board still got an opportunity to respond to my lot file correction request (I cannot rule out that certain documents were simply lost during the lot file transfer, but the new PM was informed about their existence, and per contract, they should have updated my lot file accordingly), and depending on their – coming soon – response, I will act accordingly.
Now, one question is, according to 33-1804/A/5, must the board’s deliberations also take place in the open meeting? I woudl say so, but was wondering about your opinon too.
Best regards,
Andy
Andy
If the homeowner request to appeal a violation than the board can only consider that appeal in open session. The board can only hear and consider the appeal in closed session if the homeowner request that to take place in closed session. The choice is the homeowners not the board.
Dennis
One more point. The law only allows “consideration” of issues in executive session, all decisions and votes on any issue must be done in open session with homeowners allowed to speak to that issue prior to the board vote.
Dennis
Thank you. This is how I think as well, my hearing which took place in open session should be followed by deliberations (e.g., bringing up all points and considerations) as well as the vote in open session as well. In my case, the later was done in closed executive session. As this is still developing story, I will update this comment once there is a significant news. Thanks again.