by Richard Schwinger, Hamilton
In my opinion, the board’s response to my concerns for:
1. Commercial use of property for leasing or renting a portion of a home
2. Blocking the area in front of the stop sign (resolved by county authorities)
3. Misuse of yard lights (used as spotlights)
4. Unleashed dogs taking runs at pedestrians or leashed dogs.
Items 2, 3, & 4 have been resolved by common sense and the commercial logging has ended. The rationale for not allowing boarding houses is that the membership is held liable, to these renters, for property or physical injuries, they cause or receive, on our road and common areas. In effect, we members are the landlords, liability insurance. To make this clear, an insurance company will spend $20,000 to file for a court hearing. Our membership will have to defend ourselves, spending tens of thousands of dollars, depending on the seriousness of the issue or injury. The landlord’s share is only 5%!
My concern is for the rights of the owners, to be protected, by our covenants and declarations. They both help to provide for our physical and financial well-being. I sponsored a powerful law firm to look after the best interests of the membership. Accordingly, beneficial changes were made to help all members. The bad side of the complaint is where the board lawyer stated, “There is nothing referencing that this association has anything to do with the original restrictive covenants and any enforcement of those covenants.” (May 29, 2020). Also, “Therefore, nothing obligates the association to enforce. but allows any owner that opportunity.” To my way of thinking, this makes your “appointed” board deaf, dumb, and useless. The Montana Nonprofit Corporations Act specifies that annual general meetings, to be fair and reasonable to owners, notifications must be given at least ten days, but not more than 60 days prior to the meeting. Although, I have resided here since Sept. 2017, I have never been given notice of any meeting held in a public place.
An HOA is an organization that sets and upholds rules in order to maintain and enhance property value in housing communities. If you buy into an HOA you automatically become a member, be part of a representative democracy. with a ballot given to each property owner, as you agree to abide by the rules. Commonly a president, vice-president, and secretary-treasurer are elected by secret ballot.
My first month as a resident, my neighbor, an original founder of the HOA, related spirited complaints about the many dangerous potholes found on the two-year-old asphalt road. But, I related to him, the president’s annual meeting notes (Aug. 2017) indicated the “potholes” would be filled prior to the expiration of the contract… (Sept 24, 2017). He exclaimed, “The repairs filling the dozens of potholes, with the same hot asphalt had not been done, yet this was already Oct. 2017.” The president was responsible for the contract, which called for asphalt to be applied over bare dirt. What ignorance! A compacted 3-4-inch base must be applied, prior to the addition of asphalt. The goal for the asphalt was to eliminate road grading and to minimize dust conditions. The next contract called for the asphalt road to be buried under a thin layer of gravel! The month following (Nov. 2017) as I walked my dog, on this latest surface (loose gravel over hard asphalt) I slipped and slid, as if walking on marbles spread all over a tile floor. I was alerted by several members that the blue-collar labor on the road for decades was excellent. However, recent contracts offered by the board were more harmful than beneficial to the membership. No progress, instead regress, as once again, the road needs frequent grading using heavy equipment!
The protective covenants were not designed for our membership. Instead, they were a temporary “bare bones” method for governing, by the developer, as houses were being built. Montana prohibits selective enforcement of HOA covenants and declarations. When there is non-enforcement of the rental covenants, this choice would allow for professional mechanics and other similar gainful occupations.
As a former vice-president (10 years) of a condo-association HOA, my duties involved all legal and maintenance contracts. This included everything outside the paint and flooring of each unit. For ten years I was also active in a 234 residence HOA, had responsible and reasonable governance, with covenants that helped protect the value of homes and lots. For example: all buildings in addition to the house must be beside or behind the home (never in front of the residence). This prevented the addition of unsightly commercial-like structures to be seen from the
road, which would add blight to the community! My 50 years of real estate experience indicates that a better covenant package would be available to help govern the HOA. The need may be to have several volunteers, never connected to the HOA board, to locate a more appropriate group of declarations and covenants. When successful, this would prevent future serious liabilities for our rustic and attractive community. Secret ballots allow members’ opinions to be presented each year, at a public place, allows democracy for all!
The final examples of why better governance is needed are as follows:
When the board attorney’s opinion is that the association has nothing to do with the original covenants, does this mean a member mechanic can have a wrecking yard, a carpenter can have a sawmill, and both can erect buildings to assist with those professions, or other like hobbies? Friends and others may stay in mobile homes, while pit bulls are welcome. When sold, the new 12-acre lot owners may cut and harvest their trees for sustained yields! This allows every hobbyist to have their way with the lots, which were purchased in good faith. They may trust that some selected covenants would not be enforced. The understanding of this paragraph illustrates the need for more appropriate protective covenants. This, as a necessity, should be pursued.
In conclusion, it would be best to consult with a real estate attorney.