Re: SC HOA
Law - in SC, HOA's are subject to non-profit corporate law. I am on the Board, the 2nd BOD since the developer turned management over through an advisory board and we had our first election. We are an over 55 community of 108 single family homes. Our dues (base assessments) include those "common expenses" associated with the maintenance
of our "common area" including a clubhouse, pool, parking lot, retention pond, etc., etc. From the beginning, the developer included weekly trash services to all 108 residents in the monthly dues.
Our Covenants obviously are from a general template used by the developer which include sections that could be applicable to an HOA which also could have separate sub-divisions of condos or townhouses
, as well as single family homes. In the case of a "neighborhood" within an HOA comprised of condominiums
, services to the individual members (residents) such as trash service, lawn services, cable, etc. may be included as a "common expense" within the dues from which no member could be exempt. That makes sense and is reasonable due to one shared building, one shared parcel of property to be maintained, and probably one dumpster in the parking lot where the residents take their trash.
About 15% of the homeowners
in our community don't even live here full time yet, are still working up north where they maintain a primary residence, and only come to their home in our HOA for a vacation until they can retire. They don't want to pay for weekly trash when they aren't here. The Article within our Covenants applicable to "services to the members" is clearly intended to apply to situations such as a condo sub-division as described above, and states, "No owner shall be exempt from the obligation to pay for such services IF provided to all owners as a "Common"Expense". So, since we are comprised only of single family homes, our Board signed a resolution changing "trash services" from a "common expense" (which it clearly is NOT by definition), to a ""service to the members". We then allowed residents to "opt out", and take their trash to the local dump 1/2 mile up the road when they are here for vacation. We had 17 opting out and 91 who still wanted weekly trash service. The trash company agreed to this without increasing the very competitive contract cost negotiated by the board and gave us a two year term with no change in price. Our Management Company agreed to this and said they could do "split billing" to produce monthly coupon books for those with trash service and those without. The trash income collected was exactly what was paid out to the trash Company. The 17 residents who opted out were very happy and appreciative not to have to pay for a service they wouldn't use. No one complained at all...until almost 4 months later after the changes were in effect. Four residents and 3-4 other supporters spoke out accusing the Board of violating the Covenants; that trash services to members were treated as a common expense from the beginning; that anyone who purchased a home in our community knew full well that their dues included trash services, "from which no owner shall be exempt". The Board spent considerable time and effort preparing a two page document quoting pertinent provisions from our covenants in an attempt to support that the builder should never have included individual trash services in the dues since it does not meet the definition of a common expense for a single family HOA. Subsequently the four residents went to an attorney who sent the Board a letter threatening to sue if we didn't rescind the trash opt out based on a violation of the covenants. We took the letter to our Association
attorney, who said we didn't technically violate the covenants, but he would have advised against it because historically HOA's function on the "all in" or "all out" principal for services provided by the HOA, and to deviate from that practice would probably result in opposition and trouble. So, effective 1/1/14 we are reversing our resolution and making trash services mandatory to all residents whether they use the service or not.
This seems so unfair and unreasonable to me! No one was hurt by it. Those who wanted trash service got it, and those who didn't no longer had to pay for a service they weren't going to use. After all, it is the trash company who gets to keep the money from 17 residents who don't use their service; not the Association!
Please explain the logic and legality of this situation. It is beyond my understanding.