Posted on 02/29/2008 9:01:49 AM PST by AuntB
No, this isn’t about the subprime housing finance fiasco. It only relates in that some people are happy to let someone else pay for their responsibilities. This is about the dastardly institution known as the homeowners association. Mutual benefit corporations are formed and owners within a subdivision pay a membership fee for their equally shared benefits.
I bought a home in such an association five years ago. Okay, these arrangements are socialistic at best, but I wanted to be a good immigrant and go with the flow, as long as the association was meeting it’s obligations. We have 2 benefits in our association. 1. Use of the common owned recreation areas and 2. road maintenance. The Association claims 42% of our dues go to road maintenance.
So what is the problem, you ask? At our last yearly meeting, many of us were surprised to find out that only some of us actually get road maintenance. We purchased our land with the promise of ‘road maintenance’, often from a realtor who is a board member of the HOA. Half the roads in our rural community are paved and maintained by the county, not the HOA. The HOA only maintains gravel roads. This is a farce that has been perpetrated and kept quiet for decades. The original developer simply set up an HOA in order to force homeowners on county roads to pay for repairs on those on gravel roads, relieving the developer of his obligation. The board members, many with conflicts and on gravel roads have no intention of being fair about this situation.
At our yearly meeting, a motion was made to dissolve the corporation. The board, who by majority vote has the ability to dissolve the HOA, refuses. They also insist it takes 100% of the membership to dissolve the HOA. Not true, and the majority by survey has expressed the desire to dissolve.
NOTE: The law # 1900. (a) Any corporation may elect voluntarily to wind up and dissolve by the vote of shareholders holding shares representing 50 percent or more of the voting power.
(2) If the election [to dissolve] was made by the vote of shareholders, the number of shares voting for the election and that the election was made by shareholders representing at least 50 percent of the voting power. See Calif. Code: http://law.justia.com/california/codes/corp.htm
HOAs are governed by the Attorney General’s office, who refuses to look at this, and by the Davis Sterling act. According to that law,
California code states 7132. (a) The articles of incorporation may set forth any or all of the following provisions, which shall not be effective unless expressly provided in the articles. (3) The classes of members, if any, and if there are two or more classes, the rights, privileges, preferences, restrictions and conditions attaching to each class.
CORPORATIONS CODE SECTION 9330-9332 9330. A corporation may issue memberships having different rights, privileges, preferences, restrictions, or conditions, as authorized by its articles or bylaws.
9331. Except as provided in or authorized by the articles or bylaws, all memberships shall have the same rights, privileges, preferences, restrictions, and conditions.
Clearly, when there is only one class of membership, all members are afforded the same benefits for the same membership dues. This HOA is operating illegally. Our HOA bylaws:
The OA handbook states:
Ar. IV Section 2 Members pg. 18 The Association shall have but ONE class of membership. Members shall be entitled ot one vote for each lot owned in the subdivision as hereinabove stated.
ART III Pg. 18 - The primary purpose of the Association is to own, promote, improve, and maintain the property of the Assoc. for the USE, pleasure, recreation, enjoyment of ALL of the members....In carrying out such purpose, the Assoc. shall be empowered to construct, repair, improve and maintain streets, roadways, and easements......
The mention of road maintenance: Articles of Incorporation 2. (c) To maintain the roadways in said real estate development, including the access road to the main highway. (Note: all access roads are paved & maintained by county)
This ongoing deception is clear. Most of us get no benefit, but are forced to pay for those that do. The board considered dissolving if the owners on paved roads gave up their interest in the common areas in favor of gravel road owners getting the proceeds for future road maintenance, again outside boundaries of law.
As stated in the By Laws on page 31 Dissolution
"In the event of the dissolution of the Association, each member shall receive his pro rata portion of the Association's property and assets after all of its debts and liabilities have been paid or provided for."
THE LAW- 1362.
Unless the declaration otherwise provides, in a condominium project, or in a planned development in which the common areas are owned by the owners of the separate interests, the common areas are owned as tenants in common, in equal shares, one for each unit or lot.
-CORPORATIONS CODE SECTION 9680 (1) Except as provided in Section 6715, all of a corporation's assets shall be disposed of on dissolution in conformity with its articles or bylaws subject to complying with the provisions of any trust under which such assets are held.
If you have never had to deal with one of these associations, count your blessings. Those who have been using the rest of us to pay for maintenance of their property have no intention of letting go of this gravy train peacefully. I am reminded of the words of Ralph Waldo Emerson in 1838, who was dealing with a much more serious subject, but the sentiments are the same. Some property owners need to read Emerson on 'Self Reliance' as well.
" Then is this disaster of Cherokees brought to me by a sad friend to blacken my days & nights.
I can do nothing. Why shriek? Why strike ineffectual blows? .........
It is like dead cats around one's neck.......
It is like School Committees & Sunday School classes and
Teachers' meetings & the Warren Street Chapel & all the other holy hurrahs........
I stir in it for the sad reason that no other mortal will move
& If I do not, why it is left undone.”
PS!! If any of you have any ideas, other than spending a fortune on a private attorney, let us know!
How about suggesting you build/buy a nice little fence-thingy which the cans sit behind? I’m guessing a 90-deg orientation with 1 end against the wall, so the front and side would be concealed.
I know you’d have to spend something, and they’d probably have you make application to approve your little scheme, but maybe it would ultimately solve all the problems.
(That is, if it’s brought up again - and it WILL be brought up when you get a piss-ant on the HOA board.)
I actually thought about doing that, but then that would force me to wheel the thing onto my neighbor’s property to get it to the curb on trash day. My current neighbor wouldn’t mind in the least ... but who knows what kind of person will move in there next (his house is for sale)?
Make the front-facing portion of it, a gate of some sort. Although I wouldn’t worry much about it.
I mean, HOAs are kind of anti-property rights; why would they care much if you actually tread on someone else’s lawn? LOL
If they give you any more trouble just just dig a hole with a ramp so you can “submerge” it. Hope you don’t have a high groundwater table, though.
Not a good idea if you don’t want water pooling against your foundation. You’d need to add drainage.
Hey ... I like that idea. I could even pull a Tool Time Tim and rig up some sort of hydraulic lift for it!
Love ‘em or hate ‘em, property rights fall squarely in favor of voluntary associations of owners who all voluntarily ceded control of certain aspects of their home ownership to the association. So if you don’t like ‘em, don’t join one, and those that did can run for HOA office or stop bitching.
You are now on our “list,” oh8eleven! You named names!
I specialize in the least practical and most annoying suggestions, thanks.
You totally missed the point. I & everyone else agreed to all their ‘rules’. They’re lying in their bylaws and don’t even follow their own articles of incorporation. We were all told the dues were for OUR road maintenance. All the dues/maintenance go to a few not on county paved roads. The HOA has never maintained the county paved roads, but they tell every buyer they do...even in writing. This isn’t about an “HOA” its’ about fraud. The corporation is filed as a ‘mutual benefit’ corportion. It isn’t. It only benefits a few, so there are different classes of memberships, or should be, but we all pay the same.
It does no good to ‘run for office’. Each lot gets one vote. Realtors (like the one on the board who sold me my home!)own many lots...surprise ALL on gravel roads!
Or better yet, write "FOR SALE" on the side. Someone will steal them for sure. Got rid of an old mattress that way once.
Okay, so you have a case of breach of contract (or maybe, as you suggested, fraud). Do you have legal counsel? It would be a good idea to have your case reviewed by a professional.
And yes, I need to read the article before posting. But often complaints about HOA's are indeed miscast as property rights matters and not contract matters.
FREE TRASH CANS
They'll just try to empty it.
LOL. My old gas grill did disappear within minutes of my wheeling it out to the road.
Hope it helps. Also, most law firms will offer an free consultation to determine the merits of the case. Call a few and ask.
Good point. If more than 50% want to disolve then it should be a no-brainer getting a new board voted in if you can organize it and get it in place.
lol
Welcome to the Seinfeld club.
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