Real Estate Law
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Hi, Rick, and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provided you with Excellent Service
1. How many homeowners members are there in this development which is subject to the By-Laws ?
2. Have any homeowners, other than yourself, expressed displeasure with the president and how he is running things ?
3. Has a settlement date been set for your transaction, i.e., what is your time frame in which you want this accomplished ?
Thank you, XXXXX XXXXX look forward to your reply.
I understand the predicament that the president has placed you in and it is unfortunate that they choose not to follow the By-Laws. However, the By-Laws are not voluntary, they are mandatory, therefore, they must be followed and you have every right to demand that they be enforced.
Please understand that I am giving you the only two possible solutions available for the problem created by the president, so please do not hold it against me if two weeks is not adequate time to effect this solution.
1. Since the By-Laws mandate that the same individual cannot hold the office of president of the association for more than a couple of years, the present president is violating the By-Laws by holding that office for almost ten years. You can say that his presidency is invalid. Rather than wait until the date when elections would take place, if the By-Laws were followed, you should get all the other owners (whether they live within that community or not) and call for a Special Meeting. Anyone can call for a Special Meeting if certain rules are observed:
1. A Notice of a Special Meeting must be given to all members, either by hand delivery or by mail;
2. The Notice must state the purpose of the Special Meeting which in this case is "Elections";
3. The Notice must state the date, time, and location of the Special Meeting;
4. The Notice must include the Agenda for the Special Meeting which would be "Elections";
5. The Notice should include the names of the people who are running for office,
If you cannot get anybody to run for any office, you can put your name down as running for president. As long as you have a "Quorum", you can have the elections. The By-Laws tell you what constitutes a Quorum for your particular development. The percentages vary for each association, so I cannot give you any percentage, it would be the By-Laws which control this number. You can include in each notice that the office of president is being occupied illegally because of ______________ (State the paragraph number which prohibits holding such office for more than a couple of years. You can also state in your notice that it is very important to the value of each owners property that each owner attend this Special Meeting and that each owner participate in this election because if they do not, they will continue to allow a small group of individuals to manipulate them and use their apathy for their gain.
2. The second way is to go to Court and ask the Court to enforce the By-Laws or remove the president as holding office contrary to the By-Laws.
Either way will take time, but a Special Meeting would be faster and can, conceivably, be accomplished in within the two weeks that is set as your time line.
I can suggest a third alternative, but I do not know how effective it would be given that a small "clique" is involved in controlling the entire association. You could write to the association, addressing the letter to the president and sending it by certified mail, Return Receipt Requested, and sending a copy by regular mail. In the letter you would state your position, i.e., that you have a buyer who is rightfully demanding a Lien Waiver as a prerequisite to buying the property and that the prospective buyer has made the purchase of the property and going to settlement contingent on your ability to obtain this Lien Waiver. You can also include in your letter the fact that you will suffer irreparable, substantial, and financial harm if he does not issue the Lien Waiver and that if he fails to issue that to you or your buyer, you will be left with no alternative but to file a lawsuit against not only the association, but also against him, individually and personally because he is illegally withholding the Lien Waiver as well as illegally holding the office of president of the association.
At the very beginning of your letter, you can mention the number of times you have attempted to reach him and his refusal to return your calls. Then, at the end of your letter, you should say that this fact will be brought up if it becomes necessary to file a lawsuit and you will ask the Court for punitive damages, Attorneys' fees, etc. because of his refusal to issue the Lien Waiver and his refusal to return any of your telephone calls was "wanton, willful and in reckless disregard for the consequences you will be subjected to. This letter would be substantially more effective, if written by an attorney and starts of with,
Dear Mr. __________ Please be advised that I represent Mr. Rick _______, an owner of property located at ____________ and a member of _________________ Association, etc.
This would let the president know that you have already retained an attorney in anticipation of his refusal and in preparation for filing a lawsuit. If the president still refuses to issue a Lien Waiver, you can have the Attorney immediately draft a Complaint, file it with the Court and serve it on the president well in advance of your settlement date, thereby giving him one last chance to issue the Lien Waiver before the settlement date.
If you need to buy more time, you can still have settlement and you can tell the buyer that you are willing to put into an escrow account the amount that would be owing if the association actually did try to collect the fee for the years you owned the property.
I realize that things would be much easier if the president cooperated in this matter, but at least you have some alternatives, even if they are not ideal, so I am kindly requesting that you not hold the president's obstinacy against me when rating my service to you, since I cannot exercise any influence over the president or his actions, or in this case, inaction,
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for assisting you,
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Hello, Rick, I see that you have had the opportunity to review my Answer in which I suggested various courses of action to obtain a Lien Waiver. Is there anything on which you would like further explanation or any clarification ? If so, please use the "Reply" button to let me know. If not, I would appreciate it greatly if you rated my service to you so that I can get credit for researching your question and furnishing you with Answers, otherwise, I do not receive any credit or payment for assisting you.It does not cost you anything additional to rate my service to you. Thank you for understanding,
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