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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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I live in an area where there is a Homeowners Board. My question,

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I live in an area where there is a Homeowners Board. My question, when changing or adding something to a bylaws is a addendum required?

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I am sorry to hear of this issue with your HOA. While changes to aesthetics and design issues within the HOA are generally not included as an addendum to the governing documents, they should be included in the Design Review Guidelines or similar restrictions so that they are clear and published to the membership.

William B. Esq. :

If your HOA has restricted the material that a fence may be constructed out of without notice, and it appears that the enforcement of this rule is "arbitrary and capricious" (meaning only against you, or a few owners), then you may have a claim against the HOA for declaratory relief for equal enforcement of the HOA documents, and the ability to build a fence equivalent to those fences allowed under the recorded design review documents.

Customer:

So this is something that cannot be verbal. It has to be in writing, right?

William B. Esq. :

Yes, it must be in writing. They cannot create an "arbitrary" rule or policy that they enforce based on oral statements.

Customer:

Do you have more information to give

William B. Esq. :

Do you want to pursue a civil litigation case against your HOA? I can provide you with the procedure.

Customer:

yes

William B. Esq. :

First: check your CC&Rs "dispute resolution" clause. you will want to be familiar with the terms specific to your contract, specifically whether or not the winning party recovers attorney's fees, and whether you must initiate mediation prior to filing a lawsuit. As a homeowner you have the option of demanding ADR (mediation or arbitration) with your HOA before you file a civil lawsuit. That is a choice that is up to you, sometimes it is worthwhile, other times it is not.

William B. Esq. :

Once you have decided to file a lawsuit against the HOA, you will need to file a complaint with your court for "declaratory relief" "breach of contract" and "breach of fiduciary duty". (Remember, file your lawsuit against the HOA, not "the board" - the board is not a legal body, the HOA is).

William B. Esq. :

Let me see if I can find a helpful guide to general civil complaints in Ohio to give you an overview as to what to expect. Most civil cases last 6 months to 18 months. You do not need an attorney to file a lawsuit like this, however, retaining an attorney will increase your chances of winning, and will reduce stress as there are many procedural hurdles that you must be aware of in civil litigation. (please give me a moment).

William B. Esq. :

Here is a very good resource (it is written for the defendant in a lawsuit, but has the information about what to expect as you go forward in litigation - most of the information applies almost identically to the plaintiff, such as discovery, motion practice, and trial preparation).

Customer:

I have a meeting today. Should I present this information you just gave me to the HOA?

William B. Esq. :

You may. The HOA must provide you with clear written guidelines to identify what the structural requirements and restrictions are. If they fail to do so and are restricting your building, they are acting in an arbitrary and capricious manner. You may take them to court to enforce your rights.

Customer:

Ok thank you

William B. Esq. :

You are welcome. Thank you for choosing our service. I do wish you the best of luck with this (hopefully they will respond quickly and reasonably). If you have any further questions, please do not hesitate to ask.

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