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HOA nightmare - has everything including ACLU involvement!
My H got suckered into being on our HOA board, as did my good friend and next door neighbor. They were both served at 8:30 pm last night. I'm so irked that poor DH has to be involved in this. Some of this is a vent, but I am concerned about whether or not we can be personally sued since H is on the board.
Back story - I live in a fairly new developmennt. There were two builders involved - the builder who did phase 1 and 2 (our house) are out of the community. The builder in the final phase is still here. The HOA got turned over November 2010 to the neighborhood, but the builder retains 100% control of the ARC, so the HOA has no authority in reviewing, approving, or rejecting requests.
Two guys bought a foreclosure. They are nice guys - I'll note that they are a bi-racial gay couple (I suppose this is why they are trying to get the ACLU involved). They submitted plans to re-do their front, put up a fense, and re-do their back. Their property is on a corner, so their backyard is visible to everyone. Personally, they spent a fortune I'm sure and it looks nice. They did do a ton of hardscape though - I ripped out most of the lawn and put big rocks instead of grass with some measily trees spaced out in the back. They put some big boulders in their front lawn and did a lot of stone work. Although it's nice, it does look a bit out of place - like something you'd see in Arizona or the Southwest.
They submitted approval to the ARC (builder) and their plans were rejected. They built anyway, got a cease and desist, and kept going because they said they spent the money already. The builder (who really just wants to make an example out of them) has been sueing them. Mediation failed because they refuse to change anything. One of the guys is particularly emotional - he's come to the HOA meetings (monopolized all the time) and just breaks down crying. He's come-by our house and the President's house (we both have babies) unannounced pretty late at night (for people who have babies) just sobbing to the point where poor DH doesn't know what to do becaue he has not control over what is happening.
I should mention that when this first started we socialized with them a few times and were very sympathetic - but they lied about the story (since H now has access to all the paperwork and knows their story was inaccurate). They were also sued by the HOA in their old community for the same thing (you think they would have learned a lesson). In anycase, they met with the ACLU to try and get them to help with legal expenses, take the case because it's costing them a fortune and the builder is not going to drop this. They are claiming they are being discriminated against because one is black and they are gay. We haven't heard if the ACLU is taking their case, but they did have the meeting. We have a very diverse neighborhood and requests by many have been denied. To build their case, they went around and filed HOA complaints for violations (way more minor, but violations nonetheless) on 5 other homes so now those poor neighbors are in shits with the HOA since once a complaint is filed, it has to be addressed/resloved.
Once my neighbor was elected to the board two months ago (and nominated by these guys to be on the board!), she told them she couldn't speak with them about the lawsuit. They stopped talking to her. We were all outside on Monday enjoying the weather and the one guy (the emotional one - the other one doesn't say much about it unless his partner gets worked-up and then he intervenes) was walking his dog and asked H and my neighbor if they were going to do anything to get the lawsuit dropped. They told him again they had no control over any of this. He then said he's going to countersue the HOA and the board members personally, started crying again, and then turned around and took off jogging with his dog.
It's a fcking mess! I know it's terrible, but this has H so stressed out and I hope they lose and have to pay big-time for doing this to everyone. My concern it (lawyers please come-in) - can we be personally sued by these people because H is on the board? They seem to think so. My neighbor's husband is getting her some sort-of personal liability policy related to this - so maybe we should look into it? My neighbor is worried that a personal policy won't cover this since we'd be getting coverage in the middle of this lawsuit - even though not personal lawsuits have been filed - the dude threatened it this week and now I'm worried. Poor DH just agreed to be on the board to deal with landscaping because he likes that stuff.
Re: HOA nightmare - has everything including ACLU involvement!
That does sound like a nightmare. You HOA Decs & bylaws should have a provision in them that makes officers immune from liability for conduct they take on behalf of the HOA. Check to see if yours has that provision (ours does). If it does, call the attorney for the Plaintiffs and tell him that you are going to file a Motion to Dismiss and will seek sanctions, costs, and expenses for naming your husband individually UNLESS he wants to voluntarily dismiss him.
This sounds like a nightmare. I'm sorry.
I'm also immensely grateful that I don't live in a neighborhood with an HOA. But I hate grass with such a passion that immediately tore it out of the front and back yards as soon as I moved in
Thank you - I just checked and there is an indemnification of officers and directors section. They haven't named him (or filed as far as we know) anything personally yet - one of the guy's just threatened it. The supoena H was served with was for their court date with the builder (ARC) related to the original suit. I suspect they are nervous since the mediation attempts failed, and the court date is coming up in May. I wasn't worried about it until my neighbor started freaking last weak about personal liability, and then the comments this week. From what I'm reading in this clause - we should be fine. Do you think an insurrance policy for this is necessary? I do know the board as a whole has coverage through the HOA, so if this clause is saying the HOA would incurr expenses related to a board member being involved with a legal matter (just because they are on the board), my understanding of it is that they can't be individually held accountable? It says:
"the officers and directors of the association shall not be liable to the Members of the association for any mistake of judgement, negligence or otherwise, except for their own individual willful misconduct or bad faith"
I interpret this to mean DH is safe unless he personally does something melicious or illegal not in association with his board obligations. Is that correct?
The insurance policy for the HOA should also pick up coverage for the individual board members with regards to their activities for the HOA. If the guys do name the board members individually then refer it back to the HOA insurance coverage. Double check with the insurance agent and give the adjuster a heads up that they are threatening to sue the individuals as well.
Excellent advice because sometimes policies include a provision that allows them to deny coverage if they aren't timely notified of a threatened lawsuit. And "timely notified" can mean a lot of things, but believe youme, the insurance company will want it to mean, "We don't have to pay for your defense." So call and tell him you want him to be aware of a "potential claim."
Definitely call the HOA's insurance company.
And they sound like complete azzholes. I hope the judge throws out their whole suit and soon.
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Longtime lurker here but this hits close to home. I'm on the board of an HOA in NC (I live in VA) and we've been thru a suit with the developer, and multple suits against a company that owned and operated the marina that's part of our property. A lot of it is dependent on what the declarations say, some has to do with state law and from what we've seen, anyone can sue regardless of what either says. The case may be dismissed but that doesn't mean there won't be potentially high costs to the HOA and irritation to the individual board members.
If your HOA doesn't have an attorney that specializes in HOAs and the properties involved, then they need to get one. Our attorney has saved us a huge amount of problems and money attributed to the aforementioned lawsuits. Just because the declarations say they can't sue, it doesn't mean they won't try. The board should also have a separate policy to cover "errors and omissions" and also any type of potential liability that may happen when a board member is conducting HOA business. This can go so far as if a board member hits someone while driving to an HOA function, the HOA can potentially be sued. This may be a state law thing but I know in NC that is the case and we are all covered for it.
As for what the board has control over, their only "jobs" are to enforce the rules and regulations that are in the declarations and to make decisions that positively impact the community (like hodling down expenses, making sure the HOA has the appropriate vendors to keep the property clean and well maintained, etc. They're not the "police," they generally can't "make" people act a certain way (they can cite people for breaking the rules in the declarations and there should be an established policy about how that works), they shouldn't be acting as the go-between for adults that don't get along with their neighbors, etc. There are definitely things that the board has responsibility for but when the developer is still involved, it can be a gray area.
The best advice I have is to make sure the HOA has a great attorney and a great insurance agent that keeps the community's well being in mind. If the guys with the problems have done similar things before, it will all come out in the wash. Don't stress about it.
I don't know what they did before as far as sueing their old HOA board - they were sued by their old HOA board for doing the same thing (applying for approval, getting denied, and making the changes anyway). DH only knew about that because I'm guessing it was part of the discovery process for this lawsuit. I hear what you are saying. The F'ed up thing is nobody on the actual board had anything to do with this decision in the first place - it was the builder who controls the ARC (which is a subset of the HOA - I understand - but that part has not been turned over yet).
FWIW, individuals can be biracial but couples are interracial.
And these two sound like chodes. They submitted a plan and it was rejected. If they wanted to proceed, they should have resubmitted or fought the rejection. There's no way they should have proceeded and thought would all be good.
Click me, click me!
This. Maybe this is cynical of me, but after the same thing happened with their old HOA, my guess is that they were planning the whole time on suing and bringing in the ACLU when their request got rejected.