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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6209
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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How can I get the board to stop using Roundup...a dangerous

Customer Question

How can I get the board to stop using Roundup...a dangerous herbicide? I am a100% disabled vet with two service dogs. Worried about my health and that of my dogs.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Welcome and thank you for your question.

The laws that govern HOA's in Minnesota are the following:

"Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements."

http://www.hoa-usa.com/statelaws/mn.aspx

We would want to check the governing documents to see if documents set out the ability for the board to use environmentally friendly treatments as opposed to harmful chemicals. Do you have a copy of your governing documents?

"Pesticide Use in Minnesota

The Minnesota Department of Agriculture (MDA) is the lead state agency for all aspects of pesticide and fertilizer environmental and regulatory functions. These authorities are described in Minnesota Statutes §§ 18B, 18C, 18D and 103H. "

http://www.mda.state.mn.us/chemicals/pesticides/pesticideuse.aspx

In Minnesota the State Department of Agriculture (http://www.mda.state.mn.us/chemicals/pesticides.aspx) disclosed that they are planning restrictions on certain chemicals.

In a recent case in NJ (http://www.beyondpesticides.org/dailynewsblog/2012/08/condominium-residents-win-fight-against-pesticide-use/) the homeowners protested the use of pesticides by the board and contacted the environmental protection agency. The agency strongly recommended the use of safer products. The HOA implemented a new policy once state government intervened. The board realized that a law suit filed by the owners would not be a winning proposition for the them when there are many safer alternatives.

EPA http://www.epa.gov/radon/states/minnesota.html

Customer: replied 1 year ago.
Gov docs have no requirement for ecofriendlychems nor a procedure for IDR/ ADR. Does say board is obligated to isure health, welfare and safety and has Quiet enjoyment of property.
Customer: replied 1 year ago.
Are you a MN attorney?
Expert:  Attyadvisor replied 1 year ago.

Since there is no law yet in Minnesota that makes the use of the pesticides the board is using you have to provide them a reasonable argument for changing the policy. The arguments that are being used across the country have been that the board would be remiss in their fiduciary duties to the owners by not providing safer options to insure the health, welfare and safety of the community so the residents may live in quiet enjoyment in their homes.

Since there is no law yet in Minnesota that makes the use of the pesticidesthe board is using you have to provide them a reasonable argument for changingthe policy. The arguments that are being used across the countryhave been that the board would be remiss in their fiduciary duties to theowners by not providing safer options to insure the health, welfare and safetyof the community so the residents may live in quiet enjoyment in their homes.

Unfortunately, HOA fall under contract law and is an agreement between the owners and board members to follow the governing documents. There is no State or local enforcement agency that will intervene unless the HOA is breaking the law.

That being said owners have a voice in their living environment and if there are healthier alternatives that the board is unwilling to consider you can bring an action against them for breach of their fiduciary duties to you as the owners.

http://www.nolo.com/legal-encyclopedia/fiduciary-duties-hoa-board-members.html

The site will not permit the attorneys on this site to create an attorney client relationship with the customers. I can provide you with a link for local attorneys in your area that provide free consultations if you would like to this matter a step further with the assistance of counsel.

Please let me know the city or county where you located so I can provide information for you.

Thank you for using JA!

Customer: replied 1 year ago.
Please provide name of local attorney and answers to last questions. Thanks.
Expert:  Attyadvisor replied 1 year ago.

You are most welcome. Can you tell me the city and/or county that you reside in?

Expert:  Attyadvisor replied 1 year ago.

I am licensed in State and Federal court. I am not licensed in Minnesota;however, I am very familiar with HOA law as I have been practicing in multiple jurisdictions for 27 years. I need to know the city or county that you are located in to provide a link for attorneys in your area.

Thank you for using JA!

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