Reader Questions - Inoperative AssociationsDec 29, 2014
We have no management company in our HOA for over a year. One board member is running the whole show, who is the secretary, treasurer, paid gardener and landscaper. The complex landscape is in a mess. We have nobody to complain to because he won’t listen. Three other board members don’t seem to care. Plus we have not seen any financial report of the current year. Do we have a case to get rid of this guy?
Your association is a democracy, and very unlike business corporations in that no one officer or director is the boss. The one director probably enjoys being in charge, but also probably believes he is doing the best for the association. The other directors either don’t wish to tangle or are content to let him run things.
No one director should be running the association, no matter how good or bad the person’s performance. Associations are run by a group – the board – and not one individual. Furthermore, they run best when competently managed by a professional manager.
If your neighbors are unhappy with the state of things, then at the next annual election, elect a different board. If the neighbors are not sufficiently interested or concerned to make a change in the governance, then they cannot complain.
My five home cul-de-sac was developed with an HOA fifteen years ago primarily for the benefit of the developer and to provide a means for the private street to be maintained. We have CCRs that pass with the sale of the home to each new buyer. Unfortunately, the original buyers did not formally create the association through election of officers and establishment of dues.
Do the CCRs expire with time or should they still be valid – they were filed with the county? Can they be enforced without the formal establishment of a HOA board and dues? Will we have to re-establish the HOA and CCRs?
M.W., Imperial Beach
Unfortunately, small associations are usually established with the same complicated governing documents as larger associations. Even more difficult is the fact that the Davis-Stirling Act is a “one size fits all” law.
Start with a conversation with your neighbors – do most of them wish for some joint governance of the five properties? If so, you all could hold an election, form a board, and begin following the governing documents which have so far been ignored. Consult with a local real estate attorney to determine if the documents can be simplified to more fit the minimal needs of you five owners.
Covenants, Conditions and Restrictions, aka CC&Rs, are public documents and as such can be retrieved from the County Recorder office with the help of a title company or a law firm. CC&Rs often have expiration dates, but that date is usually decades from initiation of the association. If the CC&Rs have not expired, they are enforceable either by the association, acting through a board, or can be enforced by any owner. So, if the board does not act (or does not currently exist) any member could seek court assistance. However, court intervention is rarely a permanent resolution to neighbor problems, and is always expensive and stressful.
Good luck to you five neighbors,
Written by Kelly G. Richardson
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.