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When HOA boards behave badly

By Michael Hunter
Michael Hunter
Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley. E-mail questions.

Q: Your June 7 column addressed the rights of the HOA board or the board members when they believe an association member’s conduct is bothersome. What about the converse – where an HOA board acts contrary to the clear mandate of the HOA association members? Or when the board operates with a complete lack of transparency, holding secret meetings, failing to communicate with owners about their actions and selectively enforcing the rules?

A: We get a lot of questions from readers about poorly run or just plain “rogue” HOA boards. As with any industry, the HOA world is populated with very well-managed HOAs, HOAs with boards that are well-intended but simply don’t know what they’re doing and ones with rogue boards that operate in a selfish and sometimes vindictive manner.

Fortunately, the vast majority fall into the first category. We never hear from homeowners in those communities, since they are generally satisfied with their HOAs and have no reason to complain. If your board falls into one of the latter two categories, there are several things you can do. After writing this column, I realized that some of my suggestions were very similar to the ones that Donna DiMaggio Berger recommended for newly elected board members in our column on June 14, which can be found at charlotteobserver.com/home.

Do your homework. Read and understand your community’s governing documents, and educate yourself on the laws governing the situation. Talk to others to gather additional facts and perspectives on the issue that is bothering you. There are lots of online resources for you to educate yourself, the most well-known being the Community Association Institute ( www.caionline.org ).

Attend board meetings. North Carolina law requires HOA boards to provide homeowners at regular intervals “an opportunity to attend a portion of an executive board meeting and to speak to the executive board about their issues or concerns.” The law allows the board to put reasonable restrictions on the number of people allowed to speak and the time allotted for each speaker.

If you have concerns or questions, you should attend the meeting with an open mind – there may be issues or facts the board is aware of but you are not. Don’t assume your perspective or version of the facts is the only one. Also keep in mind that there are some issues on which the board should not or cannot disclose all of the facts due to privacy or legal concerns.

Get involved. Instead of just complaining about a perceived problem, why not be part of the solution? Volunteer your time and services to the HOA. Even if there are no open board seats, the directors are usually happy to appoint neighbors to committees to gather facts, investigate options, make recommendations and help solve problems in the community.

Rally your neighbors. If the first three recommendations do not get the desired result, then you may need to talk to your neighbors to find out if others perceive the situation the same way that you do. If so, perhaps a letter to the board signed by many homeowners, or a group of owners united with a common message attending a board meeting, will get the board’s attention.

Request a Special Meeting of the members. If you have tried the previous suggestions with unsatisfactory results, and you are convinced that a large majority of the other owners do or would agree with your provision, you can request that the board call a Special Meeting of the members for the purposes of taking specific action.

You must read your bylaws and follow the procedures exactly – typically, the board is required to call a special meeting if a stated percentage of the owners request one – usually 10 or 20 percent. The members can take whatever action the governing documents allow them to, including voting to remove some or all of the directors from office (which usually requires two-thirds of the vote of all members).

Get legal representation. If all of the above fails, you may need to hire a lawyer. We often find that if there are lawyers on both sides of an issue that are familiar with HOA law, we can reach the desired result without resorting to litigation. However, sometimes litigation may be necessary. North Carolina law gives judges the authority to award attorney’s fees to the “prevailing party” if your declaration (of CCRs or condominium) allows for the recovery of attorney’s fees.

Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to home@charlotteobserver.com. Not every question receives a reply. Find his blog at www.CarolinaCommonElements.com.
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