Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Do your bylaws give the board the right to enact rules? Or does it require that all regulation changes be voted on by the membership (rare). Most association doc's give the board the right to enact and enforce various policies without membership approval.
The board can, and the lawyers recognize that, but the lawyer is saying the trouble is when a board enacted rule (not association voted-on rule) is counter to something like first amendment rights or the unit owners rights on the use of their unit according to the bylaws themselves. Just that it will be hard to enforce...not that we can't have the rule. Someone had a window fan in their bedroom (on the inside of the window screen which is the unit owner's property/responsibility) and the board tried to bully them into removing it. The unit owner left his fan in the window. They couldn't enforce it.
I think in several cases the issue is enforcibility...not so much concern for the HOA getting sued.
for example prohibition of signage on vehicles/attaching decorations to the interior surface of any window may not be enforceable if challenged on First Amendment grounds (given it is not in our bylaws..., only board-enacted rules) ... that sorta thang..
It can't be challenged on First Amendment grounds. (There may be other grounds, for example state and local regs that prohibit or restrict what an HOA can do, but not First Amendment grounds.) You don't seem to understand that the First Amendment only prohibits the government from restricting your free speech rights. Repeat after me: The HOA is not a government entity. In the above scenario, you talk about what can be placed on a vehicle's window. In point of fact, an HOA can ban the entire vehicle (or a class of vehicles) and not even be concerned with what's on or in it. For example, they can say no commercial vehicles can be parked overnight or they can just ban all trucks outright.
If you think you have a general right to freedom of speech in all circumstances due to the First Amendment, I have a little test for you. Walk into your employer's office sometime and call him an SOB and assorted other epithets and see how long you keep your job. Try telling him or her that you have a First Amendment right to say whatever you want to whomever you want.
It can't be challenged on First Amendment grounds.
Everyone is entitled to their opinion. According to the MA condo law firm we work with it really, truly can. And these folks have the real-life on-the-ground experience to back that claim up. But alas... These are the kinds of differences of opinion that keep lawyers in business and their 7 series BMWs!
I don't think it'd be an issue if it weren't only a board-enacted rule. That's the kicker here.
If you think you have a general right to freedom of speech in all circumstances due to the First Amendment, I have a little test for you. Walk into your employer's office sometime and call him an SOB and assorted other epithets and see how long you keep your job. Try telling him or her that you have a First Amendment right to say whatever you want to whomever you want.
LOL! That's funny. I don't think I'd attempt that given our workplace etiquette bylaws.
If the HOA docs give the board the right to enact a rule, then they can do it, no questions asked and while it "can" be challenged, odds are the HOA will come out on top.
HOA's can put in place a rule that says no parking on the grass, no commercial stickers, no painting your door bright pink, pretty much anything AS LONG as the majority of the Board votes yes on it, and the bylaws give the board the right to make rules.
Now there are certain rules that are protected, flying a flag is one that boards commonly stumble over and don't have to right to regulate.
The condo does have the right to regulate anything that is easily seen from the exterior of the building. One of our condo's has regs against window AC units, and ALL of them have rules against signs visible from outside the unit.
I think the issue is that some of the board-enacted laws counter the HOA bylaws. It's not that we can't have them, they're just going to be tough to enforce in cases.
Many of our board-enacted laws do not fit into this category and are fine in that regard.
Our bylaws have a clause for signage in the windows and so that works fine. But as we've seen with a window fan, that becomes an issue. All the board needs to do in the case of these particular board-enacted laws that pose difficulty in terms of enforcement due to their running counter to the bylaws (use of your unit), is to just have the HOA members take a vote on them. There are only a few that this would need to be done with.
One of our condo's has regs against window AC units, and ALL of them have rules against signs visible from outside the unit.
Those are common and two we have as well in our bylaws. Although we had the issue with the fan on the inside of the screen. A window-mounted AC unit goes outside the unit owners property into common area.
These things are definitely tricky.
We had someone that used colored light bulbs in their lamps. There were complaints by others that they could see this colored light. But it's like...well, do we dictate what color light bulbs people can use in their lamps? LOL
First you have a D&O policy as a member of a condo board. If you feel it is not enough coverage vote to raise it. They are pretty cheap.
Second you can buy an umbrella policy for your self.
Third a Condo association when sued CAN declare bankruptcy separate from Condos themselves.
Good to know
Quote:
Originally Posted by SandyJet
Fourth - Incompetence alone cant get you sued or being stupid. It has to be willful negilence and fraudulent activities.
I'm sure there have been cases of incompetence leading to being sued. Like our rules that state that "illegal activity will be reported"...which isn't our duty nor something the board or management can take on and in my opinion I'd file that under incompetence on the board's part for having those types of openings in the rules. But if we make that claim, someone has grounds according to the condo lawyers.
Quote:
Originally Posted by SandyJet
Fifth - Owners voted in board to represent them which hurts their case.
Not in our case. We don't get a quorum on anything ever so the board ends up deciding on who is on the board. Someone who didn't vote might not have a case. But on the other hand someone who did vote...and voted for someone that didn't make the board...
First of all, I'm a board member for my HOA trying to work to improve things. I feel our board has a long history of overstepping boundaries (due to an overzealous, unhappy, retiree who happens to be the board president and self-appointed 'king of the realm').
We have been given council by our lawyers to change some items in our rules and regulations because they are not in agreement with the by laws, could result in litigation, and/or are against constitutional rights.
....ah, the condo life.
So my question is, would it be a wise move to put my condo into some kind of LLC so that if the association were sued I wouldn't lose my home? Should I be worried about all other assets I have as well (like retirement accounts)?
I think as a board member we are insured. But wondering if I should protect myself as an HOA member.
It's my understanding as an individual an LLC won't do anything to protect you. You are the LLC; the LLC is you.
It's also my understanding that if someone sues the association, the association pays. You will end up paying as an association member, but you won't lose your home over it, unless you personally can't pay and end up in foreclosure... in which case an LLC won't help either.
You being sued individually may be a different matter. In that case an umbrella policy might ease your mind. But you would have to do something individually to someone for them to sue you.
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
