“We must teach our children to resolve their conflicts with words, not weapons.”
– William J. Clinton, 42nd President of the United States of America
I recently got a query by email regarding the power of the HOA Board of Directors to “assess and collect from each member, reasonable amounts as may be necessary to fund special community projects for the common good [and] benefit of the association as approved by the majority of the members of the board.”
Just like a corporation, the Board of Directors or Trustees has the primary authority to manage the affairs of the HOA. And, unless otherwise provided in the by-laws, a HOA shall have the following executive officers who shall be responsible for the management of the association’s business. These officers are the President, Vice President, Secretary, Treasurer and Auditor. The Board may create additional positions for officers when deemed necessary.
This simply means that the officers above-mentioned run the day-to-day operations of the HOA. But they answer to a higher authority or body which is the Board of Directors or Trustees.
The law (RA 9904) assumes that those elected to the position of members of the Board take into consideration and act in the best interest of the community association and protect the rights of its members and the entire organization.
The powers and duties of the Board are typically included in the By-Laws approved by the homeowner-members. If there is a document separate from the By-Laws then it should be scrutinized whether such document forms part and parcel of the approved By-Laws.
The governing rules and regulations to be followed by the HOA membership are those found and indicated in the By-Laws ONLY. Anything not written in the approved By-Laws are invalid, improper, as well as illegal, and should not be followed.
One of the duties and responsibilities of the Board is to “collect the fees, dues and assessments that may be provided for in the by-laws and approved by a majority of the members.” A careful reading of the provision tells us that such fees, dues and assessments to be collected must be provided for in the By-Laws, and approved by a majority of the members.
If the Board would want to impose a new fee, due or assessment on the membership in general, which is not yet included in the current approved By-Laws, then the Board should present this matter to the general membership for consideration and approval of the majority of the members.
Clearly, any assessment that is imposed on the membership that is not indicated and approved in the By-Laws of the association, or are not approved by the majority of the members if such assessment is new, are illegal and cannot be collected at all.
What are the 3 remedies of HOA members if their Board is not acting for and in their best interests, such as when they impose an assessment that is new and not approved by the majority of the general membership?
First, the members can petition the Board and request that they recall the power to collect the assessment which is found to be legally untenable or flawed. We hope that the Board will listen to reason and acknowledge the lack of legal basis the collection of the assessment is based.
Second, if the Board is stubborn enough to stand by their decision to collect the new assessment then the majority of the HOA members can petition for the removal of one or as many members of the Board of the association, for any cause provided in the approved By-Laws. Such a petition should be filed with the HLURB.
Third, the members can petition for the dissolution of the entire Board of Directors or Trustees, if 2/3 of the members of the HOA submit a verified petition for the dissolution of the Board and submit the same to the HLURB.
The petition for the removal of a member of the Board or for the dissolution of the Board shall follow the implementing rules and regulations of RA 9904 as promulgated by the HLURB.
Our site is a recipient of numerous horror stories of unsuspecting HOA members falling prey to unscrupulous, deceitful and ruthless Board members who lord it over the association during their term, which may last for a long, long time.
If you have similar horror stories to tell about your HOA Board of Directors or Trustees, kindly share them with us so that we can learn how to deal with such situation and individuals. We promise to share them with absolute anonymity.
Finally, we hope that this essay provides a viable solution for suffering homeowner-members in a community. There is relief for their suffering through passive and legal means. Violence should never be resorted to resolve disputes among neighbors.