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TJ, Esq.
TJ, Esq., Attorney
Category: Legal
Satisfied Customers: 9679
Experience:  Licensed to Practice Law
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The HOA Board of my condo association has deferred repairs

Customer Question

The HOA Board of my condo association has deferred repairs for over 4 years to reach 100% of recommended reserves. Now they have undertaken 2 projects that they claim will totally deplete the reserve capital and will need to raise our monthly assessment. If repairs had been managed better (many people were paid hourly with no oversight or payment cap for instance) and done in a timely manner, we would not be drawing down the entire reserve. what can the owners do?
Submitted: 1 year ago.
Category: Legal
Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

An HOA is a democracy, as you probably already know. Accordingly, if the president/manager is doing a poor job, then he can be replaced with a vote. So, that may be the first thing you (i.e., the owners) will want to do. Also, if you have a management company that oversaw the repairs, and if they were negligent in their duties to oversee, then the HOA could sue the management company. The company that overcharged for the repairs could also be sued by the HOA for reimbursement.

So, there are three options that could help: Replace the president/manager, sue the management company if appropriate, and sue the company who did the repairs. If you were to sue the management company, then you may also want to replace the management company to a different company that will do a better job.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
Customer: replied 1 year ago.


The board president IS the property manager (unpaid). We do not have enough time to vote him out without all the cash being dispersed.


 


The repairs are barely started and have been barely started for almost a year.


 


We need to know what to do to halt an.y spending by the current board, how to replace the entire board due to misuse of position.


 


Additionally, the president and accountant ( who work as a team against the rest of the owners) hold 28 out of 300 votes and we have very poor voter turn out

Expert:  TJ, Esq. replied 1 year ago.

Hi again.

In order to replace the board, there must be a vote with the majority agreeing to remove the board. In order to have the vote, you can call a special meeting if you have 5% or more of the owners agreeing. So, you should first get 5% or more demanding a meeting for the purpose of voting on whether to remove the board. Once you have 5% or more, then the meeting must take place for the purpose of voting. If the board refuses to allow a special meeting because they do not want to get removed, then you can file a complaint with the Attorney General of California, who can enforce the law.

 

You can review the majority of the laws here: http://oag.ca.gov/consumers/general/homeowner_assn

I hope that helps.

Customer: replied 1 year ago.


Surely there is an emergency way to halt activities of a board who is shirking its fiduciary responsibilities.


 


I know about the vote process, I've read my HOA CCRs and Rules and Regs. I need advice that I can't get on Yahoo or the other public boards about stopping them tomorrow, not in two months.

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

The only way to stop the board before a recall is to file a lawsuit and then seek an injunction. In order to do that, you must first retain an attorney. The attorney would file the suit on behalf of the owners, and must show:

1. an inadequate remedy at law, meaning that compensation would be insufficient;
2. a serious risk of irreparable harm absent injunctive relief;
3. a likelihood that the plaintiff will prevail on the merits of the underlying controversy; and
4. a comparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, which on balance favors the plaintiff.

The basis of the lawsuit would be a breach of fiduciary duty, and so in order to prove number 3, you'd have to provide enough evidence to convince a judge that you'll likely win the lawsuit when the trial actually occurs. Numbers 1, 2 and 4 would likely be easier to prove since the harm is apparent ... once the money is gone, the HOA won't likely be able to get it back.

I hope that helps.
Customer: replied 1 year ago.

There we go! Do all 4 items need to be met or will a minimum of one condition let us get to an injunction?

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

All 4 conditions must be in order to get the injunction.

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