- Category Archives: "Legal Compliance"
Q. My home sits next to a common area. According to the HOA covenants, it is the responsibility of the HOA to maintain the common areas. As it stands now I mow most of the common area beside my home (the HOA’s landscaper only mows about 10 to 15 feet back from the road).
However, the common area behind my home, which consists of thick, heavy brush, is not maintained by anyone. Over the last few months the brush has grown rapidly and is now encroaching into my yard. I contacted the HOA, and they informed me that it is not in the budget for them to maintain this area, and that others within the community with common areas around their homes maintain those areas themselves. I find this in direct contradiction of what the covenants state. Am I correct in my interpretation and assumption that this is the HOA responsibility?The two basic functions of most HOAs are to enforce the community’s restrictive covenants and maintain the common areas.
Q. Our HOA’s bylaws state that the only way a board director may be removed from the HOA board is by a majority vote of our HOA members. Recently, three of our five board members voted into effect and implemented a “Code of Ethics” for our board members to abide by. The final section of this code states that any board member who violates these ethics provisions “will be subject to potential ramifications and/or expulsion from the board of directors.” This expulsion power seems to be in violation of our bylaw that gives this authority only to our HOA members. Can this expulsion be enforced?Most HOA bylaws require a vote of the homeowners to remove a director from office. In fact, the requirement is usually a two-thirds or three-fourths “supermajority” vote of the owners.
Q. Is it possible for an HOA to file a foreclosure on a residence without an attorney?
As to whether a non-lawyer can file foreclosures, I checked with David Johnson, an attorney with the N.C. State Bar.According to Johnson, the N.C. Court of Appeals has held that corporations may not appear before the courts unless represented by counsel, except for cases in small claims court or to avoid the entry of a default in a higher court. Because a foreclosure proceeding requires the preparation and drafting of court pleadings and a court appearance, an incorporated HOA may not lawfully conduct its own foreclosure without an attorney.
Q. We have a homeowners association that refuses to give documents to homeowners, grants board members architectural changes after refusing others the same changes, and has suspect practices in their elections. They even wanted candidates for the board to sign a gag order so that, if they were elected, the candidate could not criticize the board. The company assisting them is a partner to their activities, so is of no help. Their concerns do not reflect the wishes of the people living here and they basically rig the elections with the proxy votes so no one new can get on the board. They claim everything they do is legal and the homeowner has no rights when it comes to their decisions.
My question: Where can I turn to get help to change the activities of this group? Another writer recently asked what to do when their board refused to let members attend meetings The following answer applies to that situation, too.
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