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Roger, Attorney
Category: Legal
Satisfied Customers: 31672
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Have lived in a neighborhood that has volunteer Board for HOA

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Have lived in a neighborhood that has volunteer Board for HOA for past 13 yrs. - no issues - always paid, etc. here in Putnam Valley, NY 10579 - Board is very inconsistent with rules who they apply to etc. - year to year somethings are enforced - others aren't - lots of speculation goes on as no one can ever get a clear answer. Yearly maintenance which covers a myriad of items as per our budget is $1850 per home (we have 96 home in this place) again as per the budget line items this covers roads, water system, garbage, legal fees, pool maintenance, etc. We have several homeowners in arrears some as little as $100 and others the entire amount - some have justified issues for being late and/or have communicated with the Board and made payments others have not, which is not right. But all the Board does whether you owe a small amount or large is send threatening letters that they will shut off the water - all the time this is the same message - "don't pay and your water goes" - I have 2 questions - can they do this without going thru the proper channels and what would those be and what about homes with seniors or children with illnesses? AND more importantly, if a homeowner has paid lets say $1600 of the $1850 - how do they "decide" that it is water they will shut off when that $1600 covers all the line items on the budget and in essence if you divide the cost of the water per household based on their budget, technically said household has paid for their water within that $1600 - it is all very convoluted and they like to use this scare tactic on people and I really would like to know what is fact and what is fiction here? Thanks so much - Mrs.Elisa McMullen

Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question.

If a member fails to pay HOA dues, the board can - by following the disciplinary process outlined in the CC&R's - suspend the member's right to use common area amenities (or
even membership voting rights.

However, the association cannot take action which would deny the use of the residence, such as cutting off essential utilities without first suing you for a judgment.

If the utility pays the water bill, and a member has failed to pay, then the HOA can sue and obtain a judgment. Once the judgment is in place, it is possible for the HOA to shut off the water until payment is made.

Also, the arbitrary enforcement of the rules is troublesome and generally illegal. Ru,es must be applied equally to everyone all the time. Thus, if this isn't happening, there is a legal problem for the board.

Honestly, the best action would be for the members of the community to file a lawsuit to remove the current board and start anew with an election of members who will follow and enforce the rules correctly. UNTIL a court order is entered stopping the activities of the current HOA, it's not likely going to get any better because no one is going to stop it.

You and the other like-minded members should consult a local attorney about addressing this problem.

Customer: replied 4 years ago.
Hi Kirk and thanks for your reply. So you are certain that this Board "legally" cannot come onto a shareholder's property anytime they want to shut-off water - this development has 3 common wells that are handled by volunteers within the community and we just have an outside company for water filtration, etc. so almost every property has a shut-off valve on their property or at the road that can easily be accessed by a Board member so they scare you that they will come anytime and just close it - but I did think they would have to obtain some type of judgement in order to shut off water but again for someone who has paid $1600 of an $1850 bill that covers all maintenance items how do they have the right to say it is water they will take? Short of it being a threat because they know people need water to live - they have even contact the Public Service Commission here in NY about lifting the tariff we have in place that only allows them to shut off water mon-thurs between 8 and 4pm so they can come anytime they want - again, I understand they can do it but I want to clarify clearly to them that I do know the law and they can't legally do it without going thru the proper channels. Thanks again for any clarification.
The fact that the HOA controls the water on site gives it a better opportunity to do this because it doesn't have to go through a utility company in order to accomplish cutting it off. However, that doesn't make it legal.

The HOA can't "smoke out" a resident by withholding essential utilities like water. Instead, the HOA would have to sue, obtain a judgment and get permission to do this from a court.

ALSO, most courts will not give a HOA this authority UNLESS the bylaws/CC&R's say that the HOA can do this.

You really need to get the members together and consult a local attorney to stop this cavalier group!
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