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HOA in Horry County, SC. Board decides to go forward with a

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HOA in Horry County, SC. Board decides to go forward with a change to backfill an existing entrance fountain, that would have cost $30k to repair and sod it with grass. This Phase I as they call it will be followed by additional Phases where owners will have a say in what goes there.

I have asked both the Board and the Management Company to PLEASE get a vot from all owners before proceding and have been told that they have checked with legal counsel (not named) who have told them they can move forward.

Do I as an owner have any recourse?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

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As to matters such as "back-filling" the fountain area instead of repairing it?
Customer: replied 1 year ago.


Back filling means they are removing the fountain, liner, pump, decorative stone wall and backfilling it with 'fill' that will be sodded as grass.

Expert:  Law Pro replied 1 year ago.
Oh, yes I knew that's what you meant (I'm dangerous as to construction - a little knowledge).

I guess I didn't explain my question - you mean what can you do if they want to do similar actions such as back-filling in the fountain - what are your options to stop them?
Customer: replied 1 year ago.


Yes. Do I as an owner have any options to cease this action. No shovels have turned - yet. All I feel would be needed is a vote by the members for such changes. In the mean time, as this has been a gaping hole at our entrance since May, I feel the BOD should first repair and maintain what is there first - THEN seek owners input on replacement. They feel they DID this by asking a very limited number of attendees at a regularly scheduled Board meeting if they agreed with just backfilling since it would cost $30k to repair. Dubious on that estimate as well - no one has seen it. So the Board feels justified that they can go forward - and after my suggestion that they seek legal counsel - they now say they have and can go forward.


 


Can I do anything to get them to just repair the wall - leave the fountain as it was - and then go for a vote by members to see what we might really want????

Expert:  Law Pro replied 1 year ago.
OK, that's what I thought but wanted to be sure. I understand your concerns - it's a major focus that was just discarded without much forethought or placing the matter before the membership.

Documents governing the HOA are divided into 2 basic types: 1) documents that restrict the use of the property or the behavior of residents concerning the property, and 2) documents that govern the corporate entity embodying the HOA.

HOA docs that restrict the use or behavior of the owners are:

1) the CC&Rs
2) the rules and regulations, and
3) the architectural guidelines.

HOA docs that govern the corporate entity are:

1) the Articles of Incorporation
2) the By-Laws, and
3) resolution of the Board of Directors

The CC&Rs is a doc that creates the scheme of enforceable covenants and restrictions that run with the property.

The Board cannot over-ride the CC&Rs but would have to amend the CC&Rs pursuant to the language within the CC&Rs. It would be an "ultra vires" action on their part.


The association’s CC&Rs and Bylaws set forth the general powers and duties of the Board and the specific limitations upon the Board’s powers. Boards of Directors generally have the power to:

Adopt and publish “Rules and Regulations” (R&Rs) to protect the interests of the homeowners by governing the use of the common area and facilities and also regulating the personal conduct of the members, family, guests and tenants and to establish penalties for violation of the association’s Rules and Regulations.


To over-ride a decision of the board - a member can make an issue (have as part of the meeting a discussion about) or place a subject matter as part of the upcoming meeting. In your case it would be a decision about the fountain and what to do with it.

A member can make the matter an issue that should be voted on by the membership.

A member can at the meeting make a motion and have the issue addressed and voted on by the membership.


Then the member must notice the membership of the issue and when the matter is going to be voted on. Pursuant to the By-Laws - it will specificy how many members must attend the meeting and how many of those in attendance must vote to do something about the matter.

Usually theBy-Laws specificy that a quorum must attend (a majority of the membership) and of that quorum - a majority of the quorum must vote on the issue one way or another.

The board has the authority and power pursuant to the CC&Rs and By-Laws to make decisions regarding the common areas (that's actually their job).

To over-ride their decisions - the membership must do so pursuant to the By-Laws and it's stated requirements.



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Customer: replied 1 year ago.

I have the So if I understand your response, the short answer is:


There is little I can do to stop the work about to commence, but I can place this item up for discussion at the next Board Meeting (Scheduled for September) by which time work will surely have been completed.

Expert:  Law Pro replied 1 year ago.
You can review the By-Laws about calling an "emergency meeting" and see if you can get that done asap and request the board not to do anything in the meantime till the membership votes in the matter. But if they go ahead - you're SOL.

But what I would remind them of - they can be voted out by the membership too. That if the matter is presented to the membership and they get upset that they weren't given an option - the board members usually get hesitant to jump the gun.

I would have to believe that something as architectural and visually appealing as a fountain at the entrance of the HOA would be something that the membership at large would want to keep!! I know I would - I love to look at something like a fountain. I realize that they are an expense - but that's my opinion too. That gives your HOA in a unique flavor or standout from the crowd of other HOAs.

But regretfully, if they jump on the matter immediately - your only option is to see ifyou can get an emergency meeting of the membership called about the issue.


Sorry.


I am truly sorry to give you this bad news, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than an honest response. However, if your concerns were not satisfactorily addressed, then please let me know, and I will be happy to clarify my answer. I do ask that you rate me based upon whether I answered your question, and not based upon whether the answer was good news or bad news. Your positive feedback is greatly appreciated. Thank you for using our service!
Law Pro, Lawyer
Category: Real Estate Law
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Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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