Apparently, Cardinal Management was less than honest with the CIC Ombudsman regarding a homeowner complaint (CIC Ombudsman File Number 2015-00038).
Cardinal Management and the Southampton Condominium board asserted, and the CIC Ombudsman accepted, "that there is a Facebook page available and that owners can communicate using that site" as required by:
§ 55-79.75:1. Distribution of information by members requires (1) “a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves” and (2) “the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners’ association.”
The Facebook page is a private page and not available to all homeowners. When Cardinal Management was asked to "provide instructions for signing on to the Association's Facebook page" they did not respond.
Wednesday, October 29, 2014
Tuesday, October 14, 2014
Monday, October 13, 2014
An individual board member has no individual management authority
It appears that certain board members are making decisions outside of board meetings.
The board can act legally only by consensus (majority vote of a quorum in most cases) and only at a duly constituted and conducted meeting, or by unanimous written consent (in most states, boards cannot act by mail, fax or electronic ballot).
The board may delegate authority to act on its behalf to others such as committees, but, in such cases, the board is still legally responsible for any actions taken by the committees or persons to whom it delegates authority.
An individual board member has no individual management authority simply by virtue of being a member of the board.
However, the board may delegate additional authority to a board member such as when it appoints board members to committees. In a similar fashion, an officer has only the management authority specifically delegated in the bylaws or by the board (although the delegated authority can be general and broad).
Source: Legal Duties of Association Board Members
The board can act legally only by consensus (majority vote of a quorum in most cases) and only at a duly constituted and conducted meeting, or by unanimous written consent (in most states, boards cannot act by mail, fax or electronic ballot).
The board may delegate authority to act on its behalf to others such as committees, but, in such cases, the board is still legally responsible for any actions taken by the committees or persons to whom it delegates authority.
An individual board member has no individual management authority simply by virtue of being a member of the board.
However, the board may delegate additional authority to a board member such as when it appoints board members to committees. In a similar fashion, an officer has only the management authority specifically delegated in the bylaws or by the board (although the delegated authority can be general and broad).
Source: Legal Duties of Association Board Members
Saturday, October 11, 2014
Formal complaint regarding bylaw amendment procedure devised by MercerTrigiani
Since (1) there is no conflict between the Virginia Condominium Act, § 55-79.71, and Condominium Bylaws, ARTICLE XIV, Section 1, and (2) because § 55-79.51 states "particular provisions shall control more general provisions," the Bylaws "shall control”.The Condominium Act is silent on how “agreement of unit owners of units to which two-thirds of the votes in the unit owners' association” is to be obtained.
The Bylaws require that (1) voting take place "at any meeting of the members duly called for such purpose", and (2) a "description of any proposed amendment shall accompany the notice of any regular or special meeting at which such proposed amendment is to be voted upon".
The letter did not “accompany the notice of any regular or special meeting”. It does not require that members vote "at any meeting of the members duly called for such purpose”.
The Southampton Condominium Association has long been advised by David S. Mercer and/or Lucia Anna Trigiani of the law firm MercerTrigiani. Despite many attempts since October 1999 to get David S. Mercer and/or Lucia Anna Trigiani to provide the legal basis for advising the Association to ignore the Bylaws, no response has been forthcoming.
Three Bylaws have been amended using procedures devised by David S. Mercer and/or Lucia Anna Trigiani.
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1 – "Notice requirements must be observed." — Janie L. Rhoads, MercerTrigiani
2 – "We could not brook a contract law that accommodated the parties' weaving in and out of a contract as the vicissitudes of their transactional interests and positions changed over time." — Peter A. Alces, William & Mary Law School
3 – "... it’s important to follow the process outlined in your amendments clause in order to modify the existing contract." — Gavin Johnson, inVigor Law Group PLLC
4 – "Legal Duties of Association Board Members," — Jeffrey S. Tenenbaum Esq. , Venable LLP
Association newsletter, formal communication or personal soapbox?
The Management Agent has been asked to place the following on the Board's agenda for their next meeting:
1 - Regarding the September 24, 2014 Newsletter, please provide minutes of the meeting at which the newsletter was approved.
2 - If not approved by the Board or Newsletter Committee, who approved it?
3 - If the Newsletter was not prepared by the Newsletter Committee, who prepared it?
3 - Was the Newsletter printed and mailed at the expense of the Association?
4 - Who authorized the printing and mailing of this Newsletter at the expense of the Association?
5 - By what legal authority did the Association fund the printing and mailing of the Newsletter if not authorized by the Board or Newsletter Committee?
6 - Pursuant to Virginia Condominium Act, § 55-79.75, was notice given to homeowners for the meeting at which the Newsletter was approved.
The September 2014 Newsletter was unprecedented — a six page Newsletter with nine pages of documents from a formal complaint.
There's nothing wrong with a personal soapbox, but the Association may not legally fund it.
1 - Regarding the September 24, 2014 Newsletter, please provide minutes of the meeting at which the newsletter was approved.
2 - If not approved by the Board or Newsletter Committee, who approved it?
3 - If the Newsletter was not prepared by the Newsletter Committee, who prepared it?
3 - Was the Newsletter printed and mailed at the expense of the Association?
4 - Who authorized the printing and mailing of this Newsletter at the expense of the Association?
5 - By what legal authority did the Association fund the printing and mailing of the Newsletter if not authorized by the Board or Newsletter Committee?
6 - Pursuant to Virginia Condominium Act, § 55-79.75, was notice given to homeowners for the meeting at which the Newsletter was approved.
The September 2014 Newsletter was unprecedented — a six page Newsletter with nine pages of documents from a formal complaint.
There's nothing wrong with a personal soapbox, but the Association may not legally fund it.
Friday, October 10, 2014
Legal duties of Association Board Members
Association officers, directors, committee members, and others involved in the association's governance structure are often unclear as to their roles and responsibilities. And for good reason — some rights and obligations are determined by law, others by the association's articles of incorporation and bylaws, . . .
Duty of Obedience: This duty requires officers and directors to act in accordance with the organization's articles of incorporation, bylaws and other governing documents, as well as all applicable laws and regulations. . . .
Willful ignorance and intentional wrongdoing: Directors cannot remain willfully ignorant of the affairs of the association.
Duty of Obedience: This duty requires officers and directors to act in accordance with the organization's articles of incorporation, bylaws and other governing documents, as well as all applicable laws and regulations. . . .
Willful ignorance and intentional wrongdoing: Directors cannot remain willfully ignorant of the affairs of the association.
Notes from the Annual Meeting yesterday
Board Chairman agreed to ask counsel for a response to the question: "In your OPINION, what is the legal justification for abandoning the amendment procedure specified in the Bylaws, and using an ad hoc procedure instead?" How one asks the question makes a difference.
Board stated that absent passage of the amendment to fine homeowners, the Board can use other means to enforce compliance with the Bylaws and rules duly adopted.
Board claimed that the owner of the red door was fined pursuant to § 55-79.80:2. However the first sentence of this section states: "The unit owners' association shall have the power, to the extent the condominium instruments or rules duly adopted pursuant thereto expressly so provide". Southampton "condominium instruments or rules" do not contain such a provision. The owner was unlawfully fined $1800.
Door Replacements: There appears to be no criteria for acceptable door replacements — it's whatever the current directors approve. This does not satisfy the requirement of Declaration, Article XI, Para B, for a "uniform plan for the development and operation of the Condominium."
Proposed Bylaw Amendment permitting the Board to assess fines was sent to homeowners and is to be returned by December 31, 2014 in violation of Condominium Bylaws. Given the history of Board decisions over the past 15 years, if you vote YES, you need to see a shrink.Board stated that absent passage of the amendment to fine homeowners, the Board can use other means to enforce compliance with the Bylaws and rules duly adopted.
Committees: It's not clear whether or not committees exist. The Condominium Act and Bylaws provide a role for directors, management agent, and committees. The rules state that there are six committees. The Board claims it utilizes volunteers who are not subject to the Condominium Act § 55-79.75. What right then do "volunteers" have to tow cars? Is the Association obligated to protect them from lawsuits?
Construction of pool house addition is being examined. All options are on the table.
Ballots: A statement on the ballot was clarified. One could vote for a single candidate. It was not required to vote for three.
Fairness of election: Comments from the Board during the candidate presentations and the newsletter mailed days before the election by the "Newsletter Committee" were clearly an attempt to influence the election. The newsletter devoted an unprecedented nine pages to one candidate's complaint. Contrast this with the less than six sentences in minutes of Board meetings during the roughly eight months during which the complaint was being processed. This may be why some condominiums have an independent committee manage elections. Some sponsor a "meet the candidate" event before the annual meeting.
SurveyMonkey will be used by the Board to solicit homeowner input on a variety of issues. This is a step forward, but not a true survey because it is neither a random sample nor a survey of all
homeowners.
Fairness of election: Comments from the Board during the candidate presentations and the newsletter mailed days before the election by the "Newsletter Committee" were clearly an attempt to influence the election. The newsletter devoted an unprecedented nine pages to one candidate's complaint. Contrast this with the less than six sentences in minutes of Board meetings during the roughly eight months during which the complaint was being processed. This may be why some condominiums have an independent committee manage elections. Some sponsor a "meet the candidate" event before the annual meeting.
SurveyMonkey will be used by the Board to solicit homeowner input on a variety of issues. This is a step forward, but not a true survey because it is neither a random sample nor a survey of all
homeowners.
Saturday, October 4, 2014
Proposed pool house construction questioned
We're hearing that the Board intends to construct a meeting room or lounge on top of the pool house. Some questions about the proposal:
1 - Why do anything? Why do it this way? Why do it now?
2 - What will be the rules for use of the meeting room or lounge? What will be the hours that it is open? How will it be managed? Will this create a nuisance for the neighbors?
Bylaws Article X, Section 4 (a), states: "Residents of the Condominium shall exercise extreme care not to disturb other residents with excessive noise, or the use of radios, musical instruments, telephones or amplifiers."
3 - What will it cost?
One can't just add bricks on top of the existing structure. Some part of the walls and possibly the roof of the existing structure will have to be demolished to build a meeting room or lounge.
4 - How will the construction be funded? By a special assessment, increase in dues, or withdrawing funds from reserves?
Bylaws, Article IX, Section 3, states: "The reserve for replacements may be expended only for the purpose of effecting the replacement of the Common Elements and equipment of the Condominium and for operating contingencies of a nonrecurring nature."
5 - What is the legal basis for the construction?
The condominium architectural plans, including the pool house, are a part of the Condominium Declaration — Article IX.
Bylaws Article X, Section 4 (d), states: "No structural alteration, construction, addition, or removal of any Unit or Common Elements shall be commenced or conducted except in strict accordance with the provisions of the Declaration."
Bylaws Article XI, Section 1, states: "Nothing contained in this Section shall be deemed to empower the Board of Directors of the Association to authorize any change in conflict with any provisions of the Declaration."
Virginia Condominium Act, § 55-79.73:2. Reformation of declaration does not appear to be applicable. § 55-79.53. requires that the "declarant, every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments."
1 - Why do anything? Why do it this way? Why do it now?
2 - What will be the rules for use of the meeting room or lounge? What will be the hours that it is open? How will it be managed? Will this create a nuisance for the neighbors?
Bylaws Article X, Section 4 (a), states: "Residents of the Condominium shall exercise extreme care not to disturb other residents with excessive noise, or the use of radios, musical instruments, telephones or amplifiers."
3 - What will it cost?
One can't just add bricks on top of the existing structure. Some part of the walls and possibly the roof of the existing structure will have to be demolished to build a meeting room or lounge.
4 - How will the construction be funded? By a special assessment, increase in dues, or withdrawing funds from reserves?
Bylaws, Article IX, Section 3, states: "The reserve for replacements may be expended only for the purpose of effecting the replacement of the Common Elements and equipment of the Condominium and for operating contingencies of a nonrecurring nature."
5 - What is the legal basis for the construction?
The condominium architectural plans, including the pool house, are a part of the Condominium Declaration — Article IX.
Bylaws Article X, Section 4 (d), states: "No structural alteration, construction, addition, or removal of any Unit or Common Elements shall be commenced or conducted except in strict accordance with the provisions of the Declaration."
Bylaws Article XI, Section 1, states: "Nothing contained in this Section shall be deemed to empower the Board of Directors of the Association to authorize any change in conflict with any provisions of the Declaration."
Virginia Condominium Act, § 55-79.73:2. Reformation of declaration does not appear to be applicable. § 55-79.53. requires that the "declarant, every unit owner, and all those entitled to occupy a unit shall comply with all lawful provisions of this chapter and all provisions of the condominium instruments."
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