Are There Specific Industries More Prone to Constructive Dismissal Cases?
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First, this article is written from the point of view of a California resident. Much of the information presented here is relevant to other states, but you should check the laws in your own state to make sure they are the same or similar.
For most people buying a new home in America today, there is generally a mandatory membership in a homeowners association, known as an “HOA.” These organizations are essentially mini-governments with the power to make and enforce laws, including the right to foreclose on a family’s home, townhouse, or condo.
The original intention in creating the HOA provided for active participation by all members; a tight-knit community where community members addressed common issues through the HOA offices.
Reality is nothing like vision.
Today, in most cases, an HOA is a very small number of people who actively hold the authority of the HOA in their hands, and only in their hands. Typically, these circumstances are caused by the lack of involvement of the majority of HOA members.
The lack of member participation creates a certain rationale for the Board of Directors, which interprets the disinterest of the other members as the reason they should reserve the authority of the HOA. The community is divided between those who control the Board of Directors and everyone else.
For everyone else, an HOA is usually not easy to deal with. They exercise the authority to foreclose on homes, impose heavy penalties, and often control aspects of the lives of community members that typical Americans believe are a precious private right of homeowners, such as what your kids can do it while playing in their own backyard.
Homeowners often find themselves in competition with their HOA over these rights. Can I park my car in my driveway? No, the HOA says because we, a few active members, passed a law that says you can’t park a car in your own driveway unless you use it every day.
Can my kids play basketball in our own backyard? No, says the HOA, because we, a few active members, passed a law that says no street-view basketball courts are allowed. And by the way, you are not allowed to cover that open fence to limit our visibility in your backyard because we, a few active members, have passed a law that says we have a right to see in your backyard.
Can I hold my windows? No, says the HOA, because … Well, you get the idea.
Now the part you’ve been reading to find. How do you defeat your HOA?
First, you must ensure that you continue to pay your owed HOA. Most homeowners who fight with their HOA over issues like a rule restricting backyard activities, use of their own driveway and garage, and denial of their planned home improvement projects , they often get angry and stop paying fees.
This is a mistake. Pay your fair share. However, you can usually skip paying those fees and penalties. In California, an HOA cannot foreclose on your home based on accumulated late fees, penalties, and other expenses such as ‘cost of collecting’ late fees and unpaid penalties.
They can sue you in small claims, or even in the limited jurisdiction of the Superior Court because then they will get attorneys’ fees, which will be huge. However, the resulting judgment is much more difficult to use to foreclose on your home because it does not take precedence over existing bonds, meaning that the HOA would have to pay your mortgage to get your home using a court judgment. (In California, the moment you lose such a lawsuit, go to the State Bar and demand Mediation Fees – HOA attorneys charge you like they are first-class attorneys, but they charge their clients like if they were first-year rookies).
But, let’s not let it get that far, shall we? Here are some basic rules to live by when it comes to your HOA.
HOAs do not normally have a properly elected Board of Directors. As soon as you get that pesky letter telling you to stop your kids from playing in the backyard, send a letter back requesting a copy of all Government Papers.
Hopefully, the HOA will ignore or deny this request.
They are not allowed to deny or ignore a request for copies of Government Documents.
Get a copy of all of your Governing Documents and read them to see what constitutes a duly elected Board of Directors. In those communities where member participation has been limited to the few who want to be Board members, a “quorum” has generally never been achieved to properly elect the Board.
The Board, therefore, is usually meeting by default.
The default Boards have a limited scope of authority and, in some cases, have no authority at all.
In all your correspondence, constantly remind the Board that they were not properly elected.
Follow these basic steps;
1. Ask for a ‘meeting and conference’ with a Board member to discuss the issues. The HOA cannot deny your request to meet and consult. Record the meeting on video.
2. Request a hearing before the Board. Record the meeting on video.
3. Appeal the decision of the Board. Record the appeal hearing on video.
4. Request Mediation after the Board confirms its earlier decision on Appeal.
HOA board members are generally not well versed in the laws that govern the operation of an HOA. many will be familiar with the relevant parts of the foreclosure laws and, of course, will know the HOA rules and regulations by heart.
However, I have found that the Board of Directors is often unfamiliar with the requirement to meet and consult in good faith. Therefore, it is common for the member of the Board of Directors who appears to meet and deliberate, meets but does not deliberate. There is a good faith requirement that makes inappropriate the type of responses that the typical HOA Board member will offer in response to your questions.
For example; you have received a letter telling you to move your 1966 Ford Mustang out of your driveway because it is not driven every day. Well, you say, “what proof do you have that he doesn’t drive every day?”
“We have an anonymous notice from another owner,” responds the HOA Board member.
“Okay, you had a complaint. But what proof do you have that the Mustang is not driven every day? A mere complaint is not proof and does not rise to the level of a violation. You are supposed to investigate to determine if the La Complaint was fact or mere opinion, so what proof do you have?
There is a good chance that the “complaining member” is none other than the Board of Directors itself that simply discussed your Mustang at its last meeting. So there is no proof.
Write a summary of the meeting and conference. Express that the Director was not aware of the infraction, therefore there is no infraction.
When the HOA sends you your next letter, usually a threat to move the Mustang or face hefty fines, you send a letter denying there is a violation. Remind them that they were not chosen correctly and that the results of the meeting and conference were favorable for you, not for the HOA.
The HOA is supposed to schedule a hearing in which evidence of your violation is presented and then decide on the evidence and testimony provided at the hearing. Be sure to demand such a hearing and be sure to attend. It is a good idea to videotape the meeting.
It’s no wonder the HOA rules in your favor, even when they have evidence to show that there was no violation, or if they had no evidence to show that there was a violation.
Requires appeal. Make sure to attend, and yes, videotape it. At the appeal hearing, point out that the Board members were not properly elected and did not have facts to support your earlier decision.
When the Board confirms its previous ruling, it will demand mediation.
At mediation, tell the mediator that the Board was not properly elected, did not meet and consult in good faith, convened a disciplinary hearing without any evidence of a violation, ruled against you without any evidence that there was a violation, and He affirmed his ruling despite the lack of proof and / or proof to the contrary.
The mediators will only want to divide the matter in two; If you have been fined $ 1000, they will encourage you to offer $ 500.
Deny.
Your next step is the most crucial. The HOA will expect you to pay, or in the most unlikely situation, to file an action in Superior Court to enforce the Governing Documents.
Instead, you file what’s called a “Mandate Order.” This is the proper place to appeal the Board’s decision.
While this will cost you some legal fees, it is the winning move. HOAs and their attorneys are generally unfamiliar with this particular court option and will be totally out of your league when faced with an injunction.
However, the court will entertain you because you are appealing to an administrative body that has the obligation to accept and rule on the evidence and testimonies presented. And, if they fail to rule on the evidence, they can be overturned by the next higher court. In California, the next higher court above an HOA appeal hearing is the Superior Court Auto Judge.
If you have carefully compiled the evidence listed above, it is very likely that it will prevail. Fines will be reversed, late fees, etc. they will be voided, and the HOA will pay your attorney.
From then on, the HOA will likely turn a blind eye to your Mustang, or your child’s backyard basketball court, and look for easier victims.
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