Larry sat at the polished walnut conference table, his wife seated beside him and beaming with excitement. There would be these final agonizing moments here inside the title company and they would take possession of their first home. There were three others seated around the table; the attorney, a representative for the builder and the secretary for the title company. The attorney droned on as they pared down the mound of paperwork, copies being offered across the smooth tabletop for signatures after a summary explanation of each. There was no requirement that any more than that be provided. It was a given at these occasions that no one took the time to thoroughly scour every line of every page. Who ever reads all of the boiler plate?
Coming very near to the end there was a cursory explanation of covenants accompanying the deed, the home owner’s association and small sheaf of papers detailing the by-laws and management of the association. This association would remain under the direction of the builder until the development was completed, overseen by a property management company for collecting annual fees, blah, blah, blah. Sign here, Mr. Jones. More boiler plate! He took the pages, hastily scrawled his signature at the designated space as he had with all of the others and it was added to the pile that would be theirs for the keeping once this was all over.
Fifteen minutes later it was done. They escaped the sterile confines of the office to a brilliant spring morning with a set of keys and the bulging folder of forms from the transaction. It was a short ride from the title company to their home. Larry pulled into the driveway, exited the car and stood with his wife for a few moments to gaze upon the house. They each in their own way reflected on the occasion, neither finding any words to voice their thoughts. The minute passed in a silent appraisal and then Larry turned to his wife, held out an arm and offered a look that said “Shall we?”
It wasn’t a palace, but everything was new. A moderately priced, moderately sized, moderately attractive home in a middle income neighborhood with acceptable schools and nearly any shopping needs within a short drive. It was everything she wanted and at least on paper was within a reasonable budget. Well, not everything she wanted. It was acceptable. For now. It was a good starter home for someone who wasn’t handy enough to tackle a fixer-upper.
They settled into their home with their small family and began to fill it with all of the little things that eventually end up accumulated in your garage or basement after twenty years. Rugs, accent tables, knick-knacks, blinds, curtains, towels meant for decoration but never function as towels, candles that looked good one season but then had to be changed for another. They get put away, moved, forgotten, replaced with something else until they are discovered years later when the bottom falls out of the box while moving it from the garage to the basement. Or vice-versa.
Work days and work weeks passed, birthdays, holidays, everything for that one year at least a first. Life just happens in all of it’s crushing monotony, the long tunnel that may or may not have a light at the end of it. A succession of monthly billing cycles accumulated in file folders or boxes in a corner of the bedroom closet. After a while the newness wears off and the house just becomes the set of walls and a roof that slowly becomes the wallpaper of your life.
Through the first three years there was an annual bill that arrived in January from a property management company. Not an exorbitant amount. $ 110 one year ; $ 125 the next. Each time the conversation between them.
“Larry? What’s this?”
“What? Oh yeah, thats for the HOA, remember? It’s just once a year for upkeep of the common areas. You know, like the landscaping around the entrance?”
“Oh that’s right! I forgot about that….”
Sure. Everybody forgets that, don’t they? Especially if you’re a virgin homeowner. Just another one of those things that was in the fine print of your closing documents. You’ve still got all that stuff somewhere. Probably still in the same binder that you brought it home in.
After four years in their home the builder had wrapped up construction on the few remaining lots in the development. Those remote corners or irregularly shaped lots that no one wanted. If they weren’t on your street you wouldn’t even know there was any building still going on. Everyone is just busy with doing what they must to keep up on the mortgage, the taxes, the car payments, school supplies. Attending school functions, taking care of the lawn, softball four days a week in the spring. Everyone is busy with something. All the time. It never stops. Letters from the builder landed in every residents mailbox, a form letter, explaining that with the completion of the project the HOA would now be turned over to the residents. A meeting for this transition, nomination and election of board members would occur at such-and-such a place on such-and-such a date. Residents were encouraged to attend but were given the option to submit their proxies by such-and-such a date in advance of the meeting.
Of course most of the residents never saw these details. A good number of them saw the envelope with the builder’s logo amid the weekly Coupon-Saver, their 20% off coupon from Bed Bath and Beyond and the unsolicited letters from insurance agents, lawn care companies and home security systems. It seemed to have found it’s proper place being along with all of the other bales of junk arriving with the post every week and thus shared the fate of the trash container. Unopened. Just more crap that no one has any time for.
The development had 122 households. Out of these there were members of 6 who were in attendance at the HOA meeting. Good civic minded citizens who were prepared to do their part. Or maybe they had nothing better to do with their time, we may never know. Well at any rate they showed up and by virtue of this, and this only, they were now in charge. No big deal really, it’s just an HOA after all. Probably just keeping a landscaper retained, an hour of time at 7:30 every third Thursday of the month. Maybe coordinating an annual community garage sale or summer barbeque. The event passed with 95% of the residents never even knowing what had occurred or who was now running the HOA. Of the 116 proxies that might have been exercised there were zero submitted.
About a month later another round of letters landed in all of the residents’ mailboxes. They were envelopes with a new HOA logo on the outside, professionally made in sunny colors of orange and green. Enclosed were letters introducing the new officers of the HOA with their contact numbers, an announcement of the next meeting and an invitation for all to attend. Of all the letters sent there were approximately 25 that were read, the others finding their way to the landfill with all of the other junk mail. Of those 25 that were actually read there were 10 residents who showed up, and 4 of those were members of the board.
Nothing of any great importance was discussed at this first meeting. There was a summary of the association’s accounts presented by the treasurer. A motion was tabled and seconded and passed to retain ABC Lawn Care Company for the landscaping services around the entrance. There were no minutes from the prior meeting, no other agenda items, no other motions, no questions. For the few other than board members who did show it proved to be about what they expected. Ho-hum. No point in coming to the next one.
The meetings passed in this fashion for several months. The grass grew, flowers were put out, Saturday afternoons began to be filled with the smell of fresh cut grass. People went to work, kids went to school, ball practice after school. Busy, busy, busy….everyone just trying to live their own lives, mind their own business. During this time one of the board members had taken a copy of the HOA’s articles of incorporation and the booklet of the covenants and all of the rules and regulations contained therein. All pretty much the standard boiler plate. Nothing wrong with it, except for the fact that in many areas the language needed to be more specific. Some of the rules were just too vague. And besides, now that the association was theirs it was only right to place their own imprimatur upon the rules. Parsing the documents quite thoroughly a list of modifications and amendments were prepared for motion at the next meeting.
The board was impressed with all of this effort. The amendments were complete with detailed schedules where needed to provide specifics. Very well thought out with attention to standards and uniformity. Fences, signage and other exterior displays, acceptable plants and landscaping, trash containers, noise standards, approved hours for workmen to conduct their jobs. It was a thing of beauty! This was dotting the “i”s and crossing the “t”s, which is of course required when dealing with people. Why if you don’t spell it all out then there will always be someone who will rock the boat. This was just an assurance that everyone was on the same page in protecting property values. All of the motions passed with ease, under the by-laws only a quorum was required. Following this it would be necessary of course to get copies of the new regulations printed for every homeowner. There were ample funds in the association treasury and the amount could always be recovered with an increase in the annual fees in January. Surely there would be other items to add to this as well. There might some grousing from some, but it was all for the good of the community.
Larry came home from work one day in early June. The day’s mail was on the kitchen island and included a large envelope with the HOA logo. It looked kind of thick for HOA business so he decided he’d better at least give it a look. He ripped open the top without any particular care and found a small booklet contained, perhaps 20 pages in all. Revised covenants, rules and by-laws for HOA, resident copy. He flipped through the pages, it didn’t look much different. Well, come to think of it he wasn’t even sure he’d seen all of the original anyway. It was just page after page of blah-blah-blah…. He chuckled, thinking of the farcical adult voices from the old Peanuts cartoons. Wah-wah, wah wah wah wah-wah. He couldn’t recall where the original file was so he tucked the booklet back in the envelope and deposited it into the designated junk drawer underneath the kitchen phone.
Later on that month Larry and the wife made an early Saturday morning trek to the local garden center and picked up some arbor vitae and ordered delivery of mulch for those border islands they had been planning for the yard. The weather was ideal for it and they were able to corral their kids to get in on the work too. They spent much of the weekend on it and by late Sunday afternoon one of the islands was completed. They cleaned up their tools and dusted themselves off, proud of their accomplishment but ready to call it a wrap. The better part of three yards of mulch remained mounded at the end of their driveway. With a little bit of work on it in the evenings during the week and good weather the following weekend they would have it all done.
The work week began routinely the next day and Larry arrived home at the usual time, around 5:25. He came in and said hi to the wife and kids and she told him there was a voice mail, but she’d not been able to retrieve it yet. Larry rolled his eyes, thinking it would be about yet another change in practice schedule. Sighing he picked up the receiver and dialed the number for the mailbox. There was only one message:
“Hello Mr. Jones. This is Mr. Prick, Snivelly Little Prick, from the HOA? I was just calling to remind you that you have several violations of HOA rules that we’ll need to get corrected ASAP. That pile of mulch at the end of your lot is very unsightly and it actually exceeds your boundary. Also your lawn modifications must be submitted to the board for approval before proceeding with any work…. Well, anyway its more than I should try to leave on a recording. We’ll be sending you a written copy of the variances and would you please call me to discuss? The number is…..”
Larry pressed the numeral to save the message and then hung up the phone with a sneering scoff. What the fuck? Who is this asshole?, he wondered. He shrugged it off, deciding to deal with it later. The week went on in its ordinary fashion, the weather remaining cooperative to chip away at the work a few hours every evening. On Thursday Larry was working with a shovel and wheelbarrow next to the mulch on his own after dinner. It was a pleasant evening and there were many people out walking. He wasn’t paying any special attention to the foot traffic and carried on with his chore. He took a load with the wheelbarrow to dump into the next island and then on the return to the mound he noted a man with a camera out in the street in front of is house, the flash signifying clearly that he was taking photos of Larry’s yard.
” Hey! Can I help you?”
The camera came down to rest on one hip and the man replied. ” Oh, Mr. Jones? I’m Mr. Prick, from the HOA? I left you the voice mail?”, he paused to produce an envelope from his shirt pocket and extended it toward Larry. ” I wanted to deliver this in person, Mr. Jones. This is your copy detailing your variances, as promised. I…..”
” What’s with the camera?”
” Oh we just want to have a record of evidence for the violation to put in your file.”
“My file? Really? You know what Mr. Prick? I’m gonna do you a real solid here, bro! I’m gonna let you turn around right now and get the fuck off my property before I shove that camera so far up your ass your eyes will light up every time you get the hiccups. You can put that in my file too.”
Mr. Prick looked like he might wet himself. Apparently he was not accustomed to hearing such crude and vulgar language. His lower jaw quivered for an instant as though he were considering saying something. A nervous dart of his eyes met with Larry’s for just an instant and his jaw clamped shut. He pivoted himself around on one heel and stamped off in a huff without looking back. Mr. Prick was resolved. Mr. Jones had surely not heard the last of him! The association had remedies for people like this. Mr. Jones would have to be made an example of, that’s all there was for it.
Larry’s wife had not witnessed this and Larry, for whatever reason, chose not to mention it. He deposited the letter in their trash container and resumed his work. As they had planned they had completed their efforts in the yard by the following Saturday. Once concluded they tidied up the yard and driveway and then walked about examining their efforts, proud of what they had done together. As passersby filed past on their neighborhood stroll they received several compliments for how nice their yard looked. Larry was feeling quite proud that his wife was pleased and that the good of the work was affirmed by their neighbors. He had put the earlier confrontation with Mr. Prick out of his mind. After dumping the letter into the trash and seeing the can off to the landfill with the Friday morning garbage collection he’d assumed that the little episode was over. It was just the HOA. What could they possibly do anyway? Just a bunch of god damned busybodies.
Later that month at the HOA meeting only Mr. Prick and the HOA treasurer showed up. Mr. Prick had scoured the articles and called upon his esteemed education to ensure that the association would be able to remedy the situation with Mr. Jones. During his weekly inspections of the community he had made note of a handful of other less egregious violations. He had excelled in the pre-law program at Catatonic State, his alma mater. Of course that was years ago and he’d not gone on to a career in law, but he was certainly the most well educated in this area of any of the board members. They would of course defer to him in these matters due to his brilliant and masterful revision of the regulations. What Mr. Prick understood was that this was a private entity, in the legal sense, even though it dealt with the public matters of the community. The HOA was governed by those rules established in the articles of incorporation, just like any other incorporated entity. Provided they did nothing to controvert any other local or state statutes they were free to make their own rules and amend these as the duly elected board may deem fit. By virtue of their having signed the covenant agreement and receipt of the HOA rules and regulations upon taking their deeds the residents were all bound, legally, to the agreement. The individual resident could, if they chose to, challenge the board’s authority in any matter, but would have to do so through the courts. Until such time as a ruling had been issued from a qualified court to negate the HOA’s authority they were still bound to the provisions. It was abundantly clear that he was on solid legal ground here.
Mr. Prick tabled a motion for the incorporation of penalties and procedures for violations of the covenant agreement. He had already prepared a document detailing procedures for notification, a table of fines (including a 1-1/2% monthly interest fee for those unpaid) and a mechanism for the Association to levy and collect such fines. There were provisions, in the case that a member may persist in non-compliance and/or non-payment, for the Association to retain legal counsel and/or a collection agency on it’s behalf (at the expense of the violator, of course) and could as a final recourse obtain a lien upon the resident’s property. The treasurer was, as expected, impressed with Mr. Prick’s thorough preparation. As there were only the two of them present only a quorum of two was required for the motion to pass and be adopted. Mr. Prick had studied pre-law, hadn’t he? At the esteemed Catatonic State, no less! Who am I to argue, the treasurer thought.
At the start of the Independence Day holiday Larry was prepared, along with his wife and family, to enjoy a ten day “stay-cation”. Their disciplined budget did not allow for them to indulge the family road trip that year, but all were looking forward to enjoying an unhurried freedom of days spent at home. There would be some day trips to some local venues, of course. Lots of charcoal grilling and cold beers, long hot days stretching to nearly 10PM for sunset. It was going to be a well deserved rest from the workaday routine. Thursday that week was the last day of postal delivery until after the holiday. Arriving home with the children that afternoon Larry’s wife collected the mail from the box and in the children’s excitement to begin the long holiday she simply set the bundle aside without paying any attention to it. She and her husband could review it later.
She and the children retreated to the back yard where they filled fresh cold water from the garden hose into the inflatable kiddie pool they had purchased a few weeks before. His wife changed into a modest bathing suit to recline upon a lawn chaise and bask in the late afternoon sun until Larry arrived home. He arrived at his normal time and finding no one in the house to greet him wandered to the sliding screen door at the back of the house. He smiled seeing his family already relaxing and chose not to announce himself until he had changed into more comfortable attire of his own. The wall-mounted kitchen phone was right next to the door, the day’s mail in a neat stack resting on the counter beneath it. As he turned away from the door he absently lifted the stack and thumbed through it with a cursory look over the contents. It all looked like junk so he set it aside, anxious to change, grab a couple of cold beers and prep the grill for dinner.
A short time later he emerged from the screen door clad in denim cut-offs and a comfortable tee-shirt. The children splashed in the pool and gleefully greeted him with squeals of “Daddy!” His wife turned and smiled at his arrival and happily accepted a cold bottle of Bud Light from him as he came to her side. They sat sipping their beers, exchanging small talk of the day’s events for a short time and then Larry got on with the grill. They enjoyed their feast of brats and chips on the small patio table in the back yard and spent most of the rest of their evening right there. As sunset approached in the late evening the children were rounded up from the pool, toweled and herded inside to put on their PJs and retire to the game system in the basement family room.
With all quiet and settled for the night Larry and his wife retired to their living room sofa and switched on the television, in search of something mindless and distracting. Retrieving another round of beers from the kitchen his wife returned with the small stack of mail in hand.
“Larry did you look at this?”
“Nah! Just took a quick glance at it is all. Did we get anything good?”
“Mm-mm….I don’t think so, sweetheart.” She continued filing through it as she came over to resume her seat with him on the sofa. A sudden crease formed on her brow as she arrived at one item. ” Huh! Somethin’ here from the Home Owner’s Association….wonder what this could be?”
Larry had a wary moment, recalling the brief confrontation from a few weeks prior. ” I dunno. Go ahead and open it.”
She took her seat, took a swallow from her bottle and then proceeded to rip the end off of the envelope, shake out the contents and unfold the single letter inside. Larry watched as she skimmed over the lines, mumbling the lines under her breath as she went down the page. Her face remained neutral at first but then an ever deepening frown formed upon her brow until she finally exclaimed “Whaa-at? What the hell is this?”
Larry grew concerned and asked her if he could see it. “Yeah, I think you’d better!”, she replied as she handed the single sheet of paper over to him.
He started at the top of the page, seeing the HOA letterhead and the customary greeting line:
Dear Mr. Jones –
Pursuant to our brief conversation on June XX of this year and as a further follow up to the Association’s correspondence of the same date, this is our second written notification of your violations of covenant agreements contained in your HOA contract. With the acceptance of the deed for your property, located at 123 Any Street, lot number 13 in Builder X development, you signed the agreement to abide by the rules and regulations set by the Association and any subsequent revisions of the same. You were furnished with the most recent additions to the Homeowners agreement on May XX of this year.
In the aforementioned verbal and initial written notice of violations you were informed of the following variances present on your property:
1) Contrary to provision 3a-1, line bb, pg. 6, pp. 3 you have installed a modification of landscaping upon the property without having first obtained the prior consent with a design submission to the board for approval.
2) Contrary to provision 5d, line a-2, pg. 10, pp. 5 you have stored unapproved materials outside of a board approved container in public view at the end of the property line and have further exceeded the boundary of said property to have placed these materials upon a public area.
3) Contrary to provision 4, line g, pg 14, pp. 2 you have planted trees, shrubs or other plants within XX feet of neighboring property lines. A variance may only be permitted with the prior written approval of the board specifying the location of and type of foliage to be planted. Additionally prior written consent from the owner of the adjacent property must be obtained and filed with the board before any approval may be considered.
In prior correspondence the board has requested that you correct these within seven days of receipt of the initial written notice. It has now been 23 days since first written notice was issued. Under revised Association policy, revised XX June of this year the Association will begin to levy a fine of 25$ per violation, per week, until such time as the violations have been corrected to the satisfaction of the board. Penalties will continue to accrue and an interest charge of 1-1/2% will be applied per month for any balances remaining unpaid.
If after 90 days from this second written notification the violations remain uncorrected the Association will by retaining the services of a collection agency and/or legal counsel sue for the collection of the balance, including interest and the violator shall be responsible to reimburse to the Association any monies associated with the professional fees required in this collection effort. Failure to respond within 30 days of any judgement obtained will result in a lien being placed upon the property until such time as the Association is made whole.
We all share in the sense of community here in Builders Development X and only wish to insure that standards assuring the preservation of each respective owner’s property values are maintained. We are pleased that you are part of our community and sincerely wish that these matters may be resolved satisfactorily before further penalties or actions will be required. If you have any questions about how you may resolve this matter with the Association please contact me, Snivelly Little Prick, President of HOA Board at 555-555-5555 at any time.
Larry thrust the letter angrily to the floor after he finished reading. ” This is fucking bull shit! I’m not letting this asshole shake me down like this!”
“Larry! What are you going to do? Can they do this?”
“Like hell, they will! When they pay my fucking mortgage and my property taxes they get a say in what goes on on my own property! The unbelievable nerve of that cocksucker!”
“Okay, Larry. Calm down! I’ll get in touch with my sister. Her husband has an older brother who’s an attorney with Lipschitz and Greenberg. I’m sure he can help us out. Just relax and enjoy the holiday. We’ll talk to him next week.”
Larry was still fuming, but took his wife’s admonition to heart and sat back into the sofa with her nestled at his side. He was resolved to enjoy his holiday in spite of the nasty-gram from Mr. Prick. Plenty of time to deal with that later.
Their home vacation went on without any further disturbance and though it still stuck in his craw Larry was able to keep his mind from it mostly and enjoy his time off with his family. His wife had made that call to her sister and in the week following the holiday they received a call from the brother-in-law attorney. Larry spoke with him on the phone, briefly detailing the problem they were having. He was candid with him, telling him that they were not sure that they actually wanted to retain his services in the matter, rather they were just looking for some guidance. As Larry described the correspondence over the phone the attorney only responded with “Hmm.” and “I see” and “Really?” At the end of it the attorney explained that he would really need to make a review of all the documents. Larry didn’t want to schedule an appointment at the law office, suggesting instead that he come by the house and join them for a barbeque for his trouble. It was agreed.
On the evening that the attorney came to join them they enjoyed a casual dinner of burgers from the grill and baked beans. After getting the children settled into something to keep them occupied they retired to the patio table to share some cold beers. The attorney sat and perused the documents, seeming to make notes here and there. He would focus in particular at a section on one page and then abruptly shuffle pages to cross reference something pertaining on another page. He combed through it all with some care, not rushing, and appeared to be making a rather thorough exam of it, sometimes nodding or quietly murmuring some line to himself as he flipped through pages. Larry and his wife sat quietly exchanging looks, patiently awaiting any opinion. After about 10 or 15 minutes the attorney reassembled all the documents into one neat stack and set them aside. He took a deep breath and then slowly let out a long sigh, leaning back in his seat and then taking a long drink from his bottle of beer.
” You folks ever watch John Oliver on HBO?”
Puzzled Larry and his wife exchanged a quizzical look and then Larry, somewhat hesitantly answered. ” Uh….yeah, we catch it sometimes. Why?”
” Okay, well I don’t know any better way to tell you this, but I’m afraid what you have here is a case of what Mr. Oliver refers to as the “Fuck barrel”.
Again the curious look. ” The what?”
“Oh boy. You’ve never seen that one?”
“Uh, no….what does that mean? It doesn’t sound good.”
“Well, no, it isn’t. Okay, you know the expression ” over a barrel”, right? And then there is the common expression when you’re getting a raw deal that you’re getting “fucked”, right? Well its a combination of the two. Basically you’re getting fucked in a situation where the fuck- er has you, the fuck – ee, held over the barrel.”
Okay, now I know that’s not good, but still, what the hell does that mean in this case? Are you saying they can get away with this!?”
“Well, in a word, yes. They can. I’m not saying it’s right, but it is legal. As an officer of the court I can assure the two are not the same. But they have dotted all the “i”s and crossed all their “t”s. When you signed the agreements at your closing you were agreeing to be bound to the terms of the Association.”
Larry was incredulous. ” You gotta be shittin’ me! For real?!”
With a pained expression the attorney answered. ” I’m afraid so, Larry. Now look, you can contest it, sure, but that’s going to take some time and money. Filings, getting a court date…all of that. And it’s on your dime, just you. They have the funding from the Association treasury, and as you see they have also set the rules to have you on the hook for their legal expenses. Unless of course you win. You might find a sympathetic judge, but that’s a crap shoot. And on the letter of the law? Well….yeah. Fuck Barrel.”
Larry and his wife shared yet another look between them, this time mixed with incredulity and worry. There was a long silence as the news gradually sunk in.
” I just can’t believe this. We already have state laws, county ordinances, municipal ordinances, codes and zoning laws. Aren’t all of these things already addressed that way? And how the hell can they make additional rules that conflict with existing laws or codes? This is insane!”
“No, Larry. This is the law. For right or wrong this is how it works. See this plot of land is private property. It was the builder’s property, they formed the corporation as a legal entity. The articles of incorporation establish the rules governing the corporation and thus the rules for the property. When they subdivide into lots and sell to others they include these rules under the association as a condition of the sale. When you signed those documents at your closing it served as your agreement to abide by those rules. The initial intent was that these rules would insure some measure of uniformity in the development that would protect the builder’s investment. As an example, now this is an exaggerated case mind you, but to illustrate. Let’s say that the builder has half of the lots sold, has built the homes and is at that point just at the break even mark. If you suddenly have people living in the development who decide to paint their home in day-glo magenta, or put up chicken wire fences to contain their free range poultry, or maybe set up an auto repair out of their garage with all of their junk and spare parts scattered around their yard, these things are going to make the remaining properties less attractive to prospective buyers. It’s bad for the builder’s business….”
“Now hold on! Those are things already covered under local ordinances, like I said…”
“Yes, Larry, you’re right. They are, but remember I’m just using those as an illustration, okay? The point is the initial purpose isn’t to penalize or abuse the home owners. It is just meant to define a set of standards that will protect the selling aesthetics on the property until the builder has finished. After that it’s no longer their property, except for those common areas like your entryway or the right of way border along the road. And since the sign at the entry bills this as ” A Builder X Community ” there is still some identification with the builder, so there is a continuing interest in maintaining some standards for future developments elsewhere. ”
“Yeah, yeah…I get it, alright. All that explains why, but still…. it can’t be right for the association to bully people like this. There shouldn’t be a way they can get away with these heavy handed tactics. For Christ’s sake! We’re just talking about some mulch beds with greenery! On my own property, no less!”
“Larry I’m not disagreeing with you. In principle you are correct, but we’re looking at this from the perspective of the law. The builder sold the lots and built the community. They made a condition of the sale that those taking possession would remain “good stewards” of the property. The problem here is that now that the builder has abrogated their role in the association it is in the hands of the residents. It’s a problem underlying any law or rule. When the authority to enforce the rules is placed in the hands of people who will abuse it they will act in such a way and still be able to hide behind the legitimacy of the rules. It’s like the corrupt cop, okay? He can do things that are wrong, but if he can hide behind the gun and the badge it allows him to get away with it.”
” Okay, I see the comparison. Within a police department you have internal affairs to correct that kind of thing. Where’s our internal affairs? We have to have something to stop this.”
“Well Larry, in a way you do. Every deed holder in this development is a member in the association. If you want to get control out of the hands of residents who are going to abuse the authority you just need to get a majority of members, or a quorum of any assembly, to remove the officers and take control of it. What happens in these things is that people are busy, they don’t have the time or they don’t pay attention and then the control and the decisions end up in the hands of the few who decide to show up. Did you go to any of the association meetings?”
“Well, uh….no. It’s like you said, we’re busy.”
“Exactly! That’s what allows these things to happen.”
Larry thought on these words for moment. There was something familiar about this tale, but he couldn’t place it. He tried to draw the connections but just couldn’t find it so he abandoned the train of thought. He instead began searching an idea to use the rules of the association to somehow bring it down.
“So what you are saying is we just need to gather a majority of the homeowners to grab control of this thing.”
“Yes. A majority or at least a quorum, a majority of those present for a vote.”
Larry pondered this further. How would he go about it? Would he be able to get enough people involved? Most probably didn’t care to be bothered with it. And it would take time to do this, time he didn’t have to spare. He began to speak again, not so much talking with the attorney as it was thinking out loud.
” Okay, so for a majority we’d need what? 122 members, so 62, right?…..”
“Well yes, for a majority overall, Larry, but you only need the quorum, the majority at a given vote.”
“Right, right….so that might work, then, the quorum thing. Probably never get 62 to get involved…so how many do you think? Ten? Twelve?”
“That might be enough. It depends on your attendance. You know you have another option. If you can’t talk people into showing up you may be able to get their votes through a proxy.”
“A proxy? I know what a proxy is….how’s that work in this case?”
“Okay, you reach out to some of your neighbors. Explain to them a motion you want to introduce at the association meeting. If they agree, but don’t want to come to the meeting you can have them sign to you their vote to exercise by proxy. That way you would only need one other party present to second your motion to bring it to the floor for a vote. When it is your turn to vote you cast yours and present the board with any proxies you have gathered. That would give you your quorum.”
Larry nodded, following the idea through to a conclusion. ” Okay, so if we do that we have someone else on the board. Could we then move to simply dissolve the association?”
” Well….yes, I think so. If you gather a majority or quorum for the motion yes, I suppose you could.”
“Okay then. I think that’s what we’re gonna do! I really appreciate you helping us out with this!’
“Well you’re welcome. Good luck with it! Be sure to let my brother know how it all turns out.”
Larry had never once in his life played the part of a crusader. For anything. For that matter he had never really even had that much of an appetite for engaging in debate over anything. Essentially it boiled down to a lack of patience in trying to persuade people who seemed so determined to cling to ignorance. He knew what he believed, at least about most things. He also knew from his experience that the vast majority of people will believe only what they want to believe. It most cases it wasn’t worth the time or effort to convince them otherwise. For whatever proof you could produce people seemed to inevitably gravitate to others who would only affirm their original belief. One of his biggest challenges in mounting his campaign for a change was convincing himself that it was all worth it. As a practical matter it would be easier to just cave to the demands, jump through their hoops and be done with it all. The one thing that kept persisting in his mind, would not let go of his thoughts, was that it was just wrong. With no one watching, no one to raise any questions those who are left to make the rules are also left free to break the rules, or change them to their own advantage.
He began by drafting a letter to clearly explain what the HOA was, how and why it was designed and that every resident had an interest in exercising the rights of their membership. It was a painstaking process to get the points across and keep it brief enough that more would be likely to read it. After multiple edits he finally believed he had a clear, concise and persuasive argument. He printed copies for every household, plus a few extras, and on a Saturday morning began making the rounds of the neighborhood. Where he had to he would simply leave a copy in the mailbox, but tried in every case to meet the homeowner in person, briefly describe his effort and then present them with their copy.
Of those he managed to speak with the reception was generally cordial, but this accounted for less than a quarter of the community. Out of these there were also a fair number who simply held up their hands or waved him off to say ” I don’t have time for it” or “I don’t want to get involved in that.” There were those who may have greeted him, listened politely and accepted the letter and within ten minutes of his departure tossed it into the trash. Of the 97 other homes concerned there were three who were absentee owners, four who were current board members, fifty who disposed of the letter without reading it, twenty-three who read and then disposed of it and seventeen who actually read it and marked their calendars for the next HOA meeting. For all of the effort there were fewer than thirty who even gave the matter any further thought one way or the other. Larry found it mildly disheartening to find no more reception to the effort but came away confident that there would end up being enough for a quorum.
Larry had unfortunately made a minor miscalculation in his plan. By depositing copies of his call to action in the boxes of the board members he had tipped his hand. Larry’s intentions were not to unseat current board members out of any personal animosity he held for any of them. He only wanted people to be aware and remain engaged so that the association not fall into the hands of and thereby become abused by only a select few. These details, however, were not where he had made his miscalculation. It was instead an underestimation of one of the uglier characteristics of human nature: ego. Even in matters which might seem as trivial as an association of one small community it is a sad fact that those, once introduced to the intoxication of authority, become loath to relinquish it. Or to have it challenged.
The letters were distributed two and a half weeks ahead of the next meeting. Mr. Prick examined Larry’s paper thoroughly, carefully parsing every line. He measured every assertion and exhortation contained against the context of the covenants and all of their amendments, picking it apart in minute detail. Clearly this man was a rank amateur, a rabble-rouser who was only trying to subvert the governance of the association to avoid his responsibility to abide by the same rules as everyone else. With the same right of membership that he was encouraging others to exercise came the obligation to adhere to those regulations legally established for the community via the duly elected board. It was all spelled out very clearly in the rules. Mr. Prick knew just what to do to counter this attempted coup.
The week before the next meeting a newsletter was prepared, with professional letterhead and the association logo on the envelopes, and delivered to every member of the community. All very professional looking and at the expense of the association, of course, including the postage. This was the proper way of doing things. The newsletter was brief, all contained on a single page, and dealt with just two items. First was the invitation to indeed encourage those members to come and participate in the next board meeting in a week’s time. The second was to provide a warning to residents to not be misled by other communications regarding the association which were not sanctioned by the board.
Mr. Prick referenced Mr. Jones’ earlier correspondence. He did make the fair point that Mr. Jones was indeed entitled to participate and to encourage others to do same. He was also correct that members were permitted to exercise their votes by proxy. Proxy votes did not need to be collected by another member to submit in person, though this was permissible under the rules. It was also possible for residents to submit their proxy vote to the board in advance for any questions announced in the meeting agenda beforehand. The newsletter went on to explain that as no items were scheduled for vote in advance of the coming meeting that any proxies submitted could not be exercised as there was no vote to apply these to. In a closing note he reminded the members that they should be wary of any parties attempting to manipulate their votes in order to escape their own violations. Without providing the specific details of the matters in question he cited the list of Mr. Jones’ violations chapter and verse to each corresponding section of the association rules. There was nothing personal; the board only wished to act to protect property values, which of course were for the benefit of all residents.
This newsletter, like much of the other association correspondence, only found it’s way to the garbage container. The few who did read it mostly shrugged and set it aside with the rest of the junk mail, altogether forgotten in a day. Two days at most. Larry, of course, opened and read his copy immediately upon receiving it and began a slow burn as he scanned the page. Although there was nothing stated there that was untrue it was no less an unfair and incomplete characterization of what they had done to run afoul of the board. He understood the intent very plainly. It was absent detail with a purpose of discrediting him. He tossed the letter aside with contempt and muttered under his breath “fuckers!”.
He needed to walk away from the subject for a while to maintain a cool head. He was still determined to attend the coming meeting and was still hopeful that there would at least be some other residents who would do the same. Until then he tried as best he could to keep the subject out of mind.
The following Thursday at 7:30 the meeting convened at what had been the model home for the development, which now served as a part time sales office for the builder. There were three of the four board members in attendance, including Mr. Prick. Then there was Larry, Mrs. Jones and three other residents. They waited another three minutes or so to see if there might be any stragglers still to wander in. As there were none the meeting was called to order, the opening niceties were exchanged, the prior minutes read, the treasurer’s summary, blah, blah, blah….The usual mundane proceedings of any other board meeting. As this droned on Larry looked about the room and conducted a head count. There were five of them, only three board members present. The numbers were there to meet a quorum. No need of any of the proxies.
As the routine matters concluded Mr. Prick addressed to floor to ask if any of the attendees had any questions or concerns for the board. Without looking around to gauge the reaction of others Larry stood and addressed the room.
“Yes, I have a concern.”
Mr. Prick’s mouth formed a smug twist before replying. “Mr. Jones, you are recognized on the floor. What is your concern?”
“Yeah, I think we have a problem with the way this whole business is conducted. It seems to me this board has abused their authority by arbitrarily adding amendments to the HOA regulations without sufficient information being provided to the members.”
” Well Mr. Jones, perhaps you could be more specific? Meetings are open to all members, published in advance. There is nothing done in secret here. If members choose not to participate we do not have any authority to force them.”
” That may well be, I understand this, but it seems that some decisions are being taken by the board on questions that should also be published in advance so that if members find they are unable to attend they at least have the opportunity to exercise their proxy.”
“Well, Mr. Jones, if it pertains to an agenda item predetermined that would of course be true. But matters may arise during a meeting that can not be anticipated.”
“Okay, I understand that too, but wouldn’t it be proper for those questions to be scheduled on a future agenda to allow participation?”
Mr. Prick’s face screwed into half a scowl hearing this, but he recovered quickly with an answer at the ready. ” Mr. Jones it is not a question of whether it would be proper or improper. The fact is according to the rules governing the association that simply is not required. The board has it within their discretion to vote and act upon any measure before it at the time it is presented.”
” Alright, let me ask you a question about those rules. A member has the right at any scheduled board meeting to table a motion before the board and any attendees, do they not?”
Mr. Prick squirmed, just a little, to dart quick glances to the other board members seated on either side of him. ” Yes, they do. Do you wish to make a motion, Mr. Jones?”
“As a matter of fact I do. I move that there be a new election for board members here, now, at this meeting. You said yourself it is not required to schedule matters for a later meeting.”
“Well Mr. Jones that might be true for most things, but for the election of board officers don’t you think…..”
“Ah-ah-Ah!”, Larry waved his finger, ” You can’t have it both ways. The rules say what the rules say, don’t they? Isn’t that the board’s position?”
“Mr. Jones you are out of order! I suspect that this is more about you trying to avoid fines and sanction from the association for your violations, which I would remind you have still not been addressed.”
“Out of order?! Would you care to explain to the floor what we have done specifically to violate some rules you cooked up? For doing some landscaping to improve the appearance of our yard? Which, I would remind you, improves property values that are, to use your words, “to the benefit of all”?”
“Mr. Jones you don’t….”
” I have a motion before the floor. Does anyone present second this motion for a vote?”
Mr. Jones rose to her husband’s side. ” I second the motion!”
“No no, Mrs. Jones…..that doesn’t count. You are from the same household…”
” I beg your pardon? The covenants clearly state that any parties named on a property deed are designated members and therefore eligible to vote!”
The treasurer was also growing uncomfortable and concerned that Mr. Prick was losing control of the meeting. He leaned into his ear and reminded him ” Prick! She’s right, you know. You cant stop this. Just bring the vote to the floor!”
Mr. Prick steadied himself, took a sip from a glass of water and then addressed the floor. “Very well! Let the motion be brought to the floor for a vote. All in favor say aye.”
Larry and his wife each responded aye and looked around the room hopefully for voices to join them, but there were none. Mr. Prick also looked around the room nervously, waiting for any others. When after a minute there were none he smirked and proceeded.
“All those opposed say nay.”
The three board members and one of the other residents present all said nay. The two remaining residents who had remained silent were scrutinized by both the board and the Jones’. After a minute Mr. Prick addressed them.
“We have two other members present. What say you?”
The two remaining members both stated that they would abstain and then promptly rose to leave the meeting.
” A vote of 2 in favor and 4 opposed. With a quorum the nays have it. Motion denied! Do we have any other business this evening? No? I call this meeting adjourned!”
As they walked home from the meeting Mrs. Jones did her best to offer support to her husband.
” Oh Larry, I’m so sorry! You tried your best!”
It was little comfort. It was bad enough to have so many not even show, but to have the numbers there, to actually show but then not even cast their vote? That was the killer.
” You know what? Fuck these assholes! We’ll vote with our feet. Next month the house is going on the market!”
Mrs. Jones was not keen on this idea, but she knew her husband well enough not to try and argue the point then and there. Better to remain silent and let him stew.
And stew he did, into a long and sustained simmer. Despite her objections the home did go on the market and in the fall the Jones’ moved from Builder X Development to another, older home nearby. They did as Larry said they would. They voted with their feet.
Doing this is not a luxury we always have. The world is shrinking fast and soon there will be no places left to run to. When those in authority remain unchallenged and unaccountable, when they write all of the rules to favor their own, when they control the narrative to discredit any who call them into question, these are a sad state of affairs. It leaves one with the two primordial instincts of fight or flight. With no place left to run to fight is the only option remaining. Unless, of course, one considers silent acceptance and submission an option. Any way you slice it a choice has to be made.
My political opinions lean more and more to anarchy. The most improper job of any man, even saints, is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity.