What if my HOA refused to follow the laws or governing documents?
We are not attorneys. All communications are opinions and beliefs. Nothing in our communications should be considered to be legal advice. So it is best to verify everything with an attorney and make sure you understand the laws, even if you don't intend to take the issue to court, or intend to take it to small claims court.
Keep records of everything, communicate in email or registered mail, keep proof of everything in writing, photos, etc.
If something occurred, or the Board for example told you something verbally in a meeting, write them an email stating what happened and what was wrong with that. If they don’t write back challenging what you said then they are accepting it, and this gives you the proof you need.
Create a log with:
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Date of each action, like you sending an email or the Board sending an email, or someone trespassing, an attorney contacting you, notification of CCR violations, etc.,
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Name of Person taking the action,
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Description of the action,
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Chapter and section of the law or governing document violated with the text of the portion of the law or governing document violated,
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http address of the law or governing document violated,
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and Exhibit #s (proofs) of the violations.
Keep a file by paper or better on computer with back up, of all your Exhibits (proofs like emails, letters, pictures, etc). Number each exhibit to make it easy to refer to in your log.
Before giving this to an attorney, prosecutor, etc., write a BRIEF one or two paragraph SUMMARY of the illegal actions of the Board, with a list of the laws the Board violated, and add that to the top of the log. Print this out and add the physical Exhibits in numeric order to the bac and put all this in a binder. This makes it very easy for an attorney or a judge to see what is happening and evaluate your case. DON'T give this to the Board Members, Property Managers, or HOA Attorney unless you need to for court.
What actions can you take?
We recommend attempting to stay out of court with an HOA as the Board Members are at no risk. They use the insurance of the HOA and the HOA collective funds to pay for their attorneys while you have to use your own funds. They will do everything possible to attempt to stall and delay and run you out of money.
First WRITE, or Email the Board Members and in a FRIENDLY WAY explain how they are violating the laws or governing documents, or how your Property Manager is violating the laws or governing documents. The Board Members may not be aware. Ask them to rectify the situation.
HOA Attorney
If they refuse, you might also write a letter to the HOA Attorney asking the HOA attorney to REQUIRE the Board to respond to you and require the Board to follow the laws. Include the laws and covenants they are violating, don't assume they know the laws or governing documents because frequently they don't. My understanding is that the HOA Attorney must either make the HOA Board follow the laws or the attorney must quit for ethical reasons. You can contact the HOA attorney and point out that the Board is violating the laws or governing documents. Attorneys are bound by ethics, enforced by the BAR Association. Ask the attorney to respond to you within 15 days. It is not ethical for an attorney to assist and Board in violating the laws. So the attorney has two choices, to convince the Board to follow the laws or to resign as their attorney. If he doesn't do one of those choices, you can report him to the Bar Association, and THEORETICALLY, they will force him to make the choice, and if he has already helped them to commit a crime or cover up a crime, or he continues without change, he can be disbarred. This is also risky because the HOA and attorney might come back on you in retaliation.
Authorities
The best situation is if you can get authorities involved to take corrective action for you. If you have PROOF of CRIMES committed by the Board Members, like embezzlement, damage to you or your property, etc., you can try to have the city or county attorney or the Attorney General prosecute. Also report crimes to the police detectives. If you can prove a financial crime, report it to the police financial crimes unit. In most cases we have found that they won't prosecute HOA Board Members even if you can prove a crime was committed. However we do still recommend filing a written complaint with them because then it is on the record. Keep a copy of what you filed and add to your log. Some will investigate and prosecute as was done in the Hammocks case in Florida.
Others you can consider reporting to:
Better Business Bureau
If your HOA is managed by a Property Manager, and they are licensed in your state, report them to the agency that licenses them.
Local investigative news reporters.
Fidelity Bond
HOAs in some states are required to have a Fidelity Bond. A Fidelity Bond is an insurance policy designed to protect the principal, in this case, the association, against bearing financial losses due to theft or fraud by members within the association. There are different types of Fidelity Bonds with different clauses.
Insurance Companies
You may try reporting the issues to the HOA insurance company indicating that the Board is putting the HOA and the insurance company at financial risk.
Depending on the circumstances you may consider filing a claim with you own insurance company.
Remove and Replace your Board.
Another option is to remove the Board by calling a special membership meeting, making a motion to remove all of the existing Board Members, or the ones that are bad, and replacing them with your pre-vetted replacements. See our article, "How to Remove Your Entire Board and Replace Them" at https://www.hoareformleaders.com/directory under the tab "How to Fight Back"
If You Decide to go to Court.
I have personally used small claims court and won, multiple times. This works well for fighting false CCR violations or other issues about money. Although I have not faced this it should also work well for situations were the HOA is claiming you have not made a payment when you can prove you have. Small claims goes up to $5000 to $15000 depending on the state. Generally small claims cost is about $50 to file for a court date. In most states no attorneys are allowed in small claims court so you don’t have to pay an attorney, nor can they make you pay for theirs if they lose, but others do allow attorneys. Generally we have found that the small claims court clerks are very friendly and helpful do contact them and ask questions.
You need to know the laws, and assume that the judge does not know them. You must show how the HOA Board is violating the laws or show your governing docs and show that they are not following those docs. You must also show proof of the damage and written estimates on repair costs. Most small claims courts can not force anyone to do anything, they can only award money.
I just learned that Colorado small claims court have the jurisdiction to handle injunctive relief cases in relation to CCR violations. Other states many also.
I believe you should file against the individual HOA Board members, as well as the HOA, in the same suit, as you have sent them a letter showing that they are violating the law. In some states the Board Members can only receive a judgement against them personally if they KNOWINGLY violated the law or governing documents or reasonably should have known. It still makes sense to file against them personally, it will get their attention and the next time they can’t claim they don’t know the laws that you presented in court.
I didn’t do this in my case because I didn’t know about it. It is likely if they realize that they can be personally held responsible, and this will go on their personal insurance, they might feel a little less inclined to violate the laws or governing documents again.
I understand that if you win the small claims case it is unlikely they will win an appeal as they can ONLY use the same evidence they used in small claims, and they already lost there. They can bring an attorney to the appeal, and the insurance will pay for it until they are judged guilty by the court. I don’t think that applies to small claims but it would I believe in the appeal. That appeal is in superior court. If they lose, they may have to reimburse the insurance company for their legal fees. Hire an attorney for the appeal.
I have found that you need to be your own attorney, as well as hiring an attorney. You need to research the laws and discuss the facts, proofs and presentation with your attorney. Don’t just drop it in their hands and assume they are going to win the case for you. They are in it for the money and they get paid whether you win or lose.
If you are forced into Superior Court it is best to file in Federal Court as the local courts tend to be prejudiced in favor of the HOAs as they consider them similar to city governments. Again you need to look into the requirements to do that. You might look at our article
If your Board is foreclosing on you or has put a lien on your property, there are generally mediation services provided by agencies in your state to help stop the foreclosure. Look into those services. Contact your State, County and City governments to find foreclosure mediation help.
If You Have to Hire an Attorney
Remember, YOU are still the expert on your case and the one that cares the most. YOU need to know the laws and the governing documents related to your case. You still need to be your own attorney.
Make sure you hire an experienced LITIGATOR. Otherwise your attorney, not feeling comfortable going to court, will try to convince you to settle and may bail out on you shortly before the trial, because they don't know what they are doing in court.
You likely will find it hard to find an HOA attorney that is actually on the side of the homeowner. You might consider if your case could fall under a different heading, like civil rights, property rights, etc.
If You Have Special Specific Situations Not Mentioned Above.
Go to our Website Directory, https://www.hoareformleaders.com/directory, hit your CNTL F key to open your search browser, and key in key terms to find the information you are looking for. If you still can't find answers, post your issue on the main page of our Facebook page and ask the group https://www.facebook.com/groups/hrlng.
The Only Permanent Solution
The only long term solution I know about is to change the HOA laws of your state to protect and benefit the homeowners. This is HRLNG's main goal. We have members in 49 of the 50 states and also DC as of 9/2024. If you are willing to put in a little time each day or week to help change the laws, contact me through Messenger or Patrick@PK80.com, I am the founder of HLRNG.
Remember please, I am not an attorney and none of my comments are legal advice, they are my opinions and beliefs.
Patrick Johansen
Founder
HOA Reform Leaders National Group https://www.facebook.com/groups/hrlng
503-781-4492
We are not attorney’s. All communications are opinions and beliefs.
Nothing in our communications should be considered to be legal advice.
"The only thing necessary for the triumph of evil is for good men to do nothing." - Edmund Burke