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INFOLAWYER
INFOLAWYER, Attorney
Category: Legal
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Experience:  Licensed attorney helping individuals and businesses
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We had a meeting with the Board regarding the proposed CC&R

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We had a meeting with the Board regarding the proposed CC&R's and to discuss the area relating to the issue I originally asked about and this Real Estate agent was allowed to consume most of the time we were in this meeting discussing issues that related to this matter of owner's and renters plus many other items involved in this particular Article. The board made absolutely no attempt to control him or force him to recuse himself and did not allow me to make my full case as to his recusal. The chairperson of the committee I was on received all of the responses that you sent to me regarding the need for him to recuse himself and she still wanted me to be silent and not rub him the wrong way. I am not a member of the Board, but I am on the committee to revise these CC&R's and I felt I was completely locked out of this discussion. I now would like to know if I have as a member of this Association and a member of this committee any recourse against this Board for allowing this Real Estate agent to completely control the meeting and influence all the discussion regarding these matters that have significant impact on his income and business.
Submitted: 3 years ago.
Category: Legal
Expert:  INFOLAWYER replied 3 years ago.
Hello,

I am a legal expert at Justanswer. I have reviewed your question and will be helping you today.

what outcome do you want?
Customer: replied 3 years ago.
I don't understand what you mean by "What outcome do I want." I was told before by a previous legal person where you are that this agent was violating his responsibility as a board member by participating in what obviously is a conflict of interest for him and was violating his fiduciary responsibility. So if he does not recuse himself and/or the Board does not force the recuse, then what action do I have against this Board or the agent? In other words what can I do about it?
Expert:  INFOLAWYER replied 3 years ago.
If the board will not remove him and he wont resign, a lawyer letter can be sent to both pressing them to act on it. If they still do not, a lawsuit may be filed alleging breach of fiduciary duty as to both and getting a court order requiring the member to be removed along with costs.
INFOLAWYER, Attorney
Category: Legal
Satisfied Customers: 51090
Experience: Licensed attorney helping individuals and businesses
INFOLAWYER and 4 other Legal Specialists are ready to help you
Customer: replied 3 years ago.
Your answer is fine, but he has already been allowed to debate these issues and has already as a result influenced this Board in their decision. We are still arguing over it but the debate and discussion has taken place and decisions have been made as a result of this agent's input, so what can I do now?
Customer: replied 3 years ago.
I'm still waiting for an answer to the 2nd question I asked on this subject.
Customer: replied 3 years ago.
I sent a question previously and am still waiting for an answer. Please look at the question just before this response. I don't get it, I have said this before and still no one has replied.
Expert:  INFOLAWYER replied 3 years ago.
You are asking if anything else can be done aside from the options I outlined in my first response?
Customer: replied 3 years ago.

Apparently the issue was by-passed and the Board accepted changes which resulted in our CC&Rs still requiring a 75% vote to change documents. I live in a complex that has town houses on one side inside this complex and condo's on the other side with an entrance to a guard shack and a guest parking lot in the middle between these town houses and condo's. With that picture in mind the condo's share the cost of maintaining the common area that comprise the driveway entrance, the parking lot and a lake behind the condo's and the guard shack equally between all owners. (That is we all pay the same amount). The townhouse owners pay half in equal portions also. However the other common area that is around the condo portion (landscape, tree's, pool and gym/recreation building are shared on a percentage basis depending of floor plan. While at the same time the townhouse portion pay for all the common area around their portion in equal amounts. They also have their own Board of Directors, but the same on site manager manages both the condo and townhouse side.

 

I have come across a section in the Davis Sterling Act that says unfair and unequal laws or regulations can be appealed and overturned. I would like to do this and wanted your legal input to tell me whether this can be done or not. And if so can I do it in a Small Claims action to avoid all the legal fee's or must I do it through a Superior Court action. Most HOA's have all common area's paid equally between all owners. This policy we have is antiquated and out of date since the CC&Rs that provided this inequity were written in 1978 and was done to promote the sale of the one bedroom units when this complex went from apartments to condo's.

 

Our present CC&Rs call for a 75% vote to change any part of them. This issue has been the main issue in our condo Board debate in which this Real Estate Agent has been participating in. As a consequence the Board has voted to maintain that 75% ratio.

I want to change the Common Area dues percentage because I believe given the circumstances I have described I believe it is definitely unfair and unreasonable.

Rudy Williams

Expert:  INFOLAWYER replied 3 years ago.
do you have 75% support for this change?
Customer: replied 3 years ago.
If I had 75% support I would not be asking you this question. You apparently are either not reading my question or you do not understand it.
Expert:  INFOLAWYER replied 3 years ago.
You have 2 options here. One, marshal sufficient support to do so by vote. Second, sue for a declaratory judgment finding the conduct invalid as illegal and enjoining its enforcement. Such relief would not be granted in small claims court though and is normally handled by a lawyer on application for ex parte relief.
INFOLAWYER, Attorney
Category: Legal
Satisfied Customers: 51090
Experience: Licensed attorney helping individuals and businesses
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Customer: replied 3 years ago.
Civil Code section 1356 allows the association or an owner to petition the court for an order reducing the percentage required to amend the CC&Rs when the CC&Rs require a super-majority (e.g. 67%, 75% etc) to approve the amendment to a simple majority. My question is can an owner petition the court with a majority of owner signatures to amend a section of the CC&Rs requiring a percentage sliding scale payment for upkeep of the common area to say "all owners shall pay equally to take care of common area upkeep just as above code section allows or does an owner have to complete the process of amending the CC&Rs first to a simple majority then going back and collecting another petition signatures to amend the section of the CC&Rs requiring that sliding scale common area payments? In short what would be the sequence required to change that section of the CC&Rs requiring that sliding scale payment by owners to one requiring every owner to pay equally for this task. Particularly if one area of the common area is already being paid for equally by owners.
Expert:  INFOLAWYER replied 3 years ago.
If the super majority cannot be obtained as discussed, then the judicial avenue you mentioned is another possibility but carries the time and cost of the proceedings.
Customer: replied 3 years ago.
Your previous answer does not answer my question. Simply put:

1. Under Civil Code Section 1356 it infers that I as a homeowner may petition the court to amend the super majority to a simple majority. The question I have is can I as a homeowner seek to get that majority homeowner approval referred to in this section myself or does it have to be the Board? If I can, what must I do that the court will accept?

2. What would I have to do to amend the section of our CC&Rs that mandate a sliding scale percentage depending on floor plan to be paid by owners for their part of our association dues rather than an equal percentage to be paid by all as most associations have.

3. Please enumerate for me the steps that I must take as an owner to accomplish question #2.
Expert:  INFOLAWYER replied 3 years ago.
I have seen this application filed by the board and not by an individual owner. You should therefore seek to obtain majority board approval to pursue this relief by court and preferably filed by a local real estate lawyer.
INFOLAWYER, Attorney
Category: Legal
Satisfied Customers: 51090
Experience: Licensed attorney helping individuals and businesses
INFOLAWYER and 4 other Legal Specialists are ready to help you

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