Violation of bylaws and 6D certificate

[PLT]

Hello,

I live in MA in a 2 unit condo association.

The other unit owner has repeatedly violated condo bylaws. I can not enforce the bylaws since the other unit owner will never vote against himself. I can not afford to take him to court, so I just accepted the situation.

He recently asked for a 6D certificate so that he can refinance.

I responded that in good faith I can not provide the certificate because he has violated condo bylaws, not paid the relevant fines and ignored my requests to respect the bylaws.

Technically he is probably right since we never voted to levy fines against him. However some of the violations are building and zoning violations that the city has cited him for. Had we been more than 2 trustees, any other condo association would of levied fines against him.

My question is, do I have a legal basis to withhold the certificate because of these outstanding issues ?

The master deed does say that it is my duty to do everything and anything necessary to ensure proper management of Trust. Would this fall under that category?What is the name of your state (only U.S. law)?

[HomeGuru]

Originally Posted by PLT

Hello,

I live in MA in a 2 unit condo association.

The other unit owner has repeatedly violated condo bylaws. I can not enforce the bylaws since the other unit owner will never vote against himself. I can not afford to take him to court, so I just accepted the situation.


**A: you are misunderstood. A HOA or an indivdual of a HOA does not need a vote to enforce already recorded CC&R's. Either HOA or the indivdual can take appropriate action based on the condo docs. And such action could include legal action.


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He recently asked for a 6D certificate so that he can refinance.

I responded that in good faith I can not provide the certificate because he has violated condo bylaws, not paid the relevant fines and ignored my requests to respect the bylaws.

Technically he is probably right since we never voted to levy fines against him. However some of the violations are building and zoning violations that the city has cited him for. Had we been more than 2 trustees, any other condo association would of levied fines against him.

My question is, do I have a legal basis to withhold the certificate because of these outstanding issues ?


**A: yes, you do. Have you READ the 6D in its entirety?


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The master deed does say that it is my duty to do everything and anything necessary to ensure proper management of Trust. Would this fall under that category?What is the name of your state (only U.S. law)?

**A: yes, so enforce the rules.

[PLT]

Thanks HomeGuru.

Just to clarify and be certain of my legal standing...

The condo bylaws do say that the "the trustees shall have the right to levy fines" and in a previous section it states "In all matter relating to the Trust hereunder and exercise of powers hereby conferred, the Trustees shall act by majority vote"

The other unit owner is claiming that he has never voted for fines and therefore since we are a 2 unit association I do not have the majority vote necessary. Therefore there are no fines and therefore I MUST provide the 6D or be sued!

This just feels wrong to me, especially since his violations have been recorded by the city (illegal attic apartment and use of unlicensed plumber), but technically I feel that I have no grounds to counter his reasoning.

[Zigner]

This might just come down to: Can you afford to defend yourself in court?

[PLT]

Thanks Zigner and I agree with you that ultimately it will probably come down to the courts.

However, assuming I can find the means to hire a lawyer, do I stand a reasonable chance of winning ?

I still get hung up on the question of the majority vote issue I mentioned in the previous post. The other unit owner will likely claim that, as it stands, no legal judgment has been found against him and as such no fines are technically levied against him.

Is there something I'm missing?

Can I actually as HomeGuru posted, levy fines against another unit owner without a majority vote ?

Or do I first have to go to court, get a judge to find in my favor, break the deadlock and levy fines ? and until said ruling from a judge, I have to legally provide the 6D certificate

[HomeGuru]

Originally Posted by PLT

Thanks HomeGuru.

Just to clarify and be certain of my legal standing...

The condo bylaws do say that the "the trustees shall have the right to levy fines" and in a previous section it states "In all matter relating to the Trust hereunder and exercise of powers hereby conferred, the Trustees shall act by majority vote"

The other unit owner is claiming that he has never voted for fines and therefore since we are a 2 unit association I do not have the majority vote necessary. Therefore there are no fines and therefore I MUST provide the 6D or be sued!

This just feels wrong to me, especially since his violations have been recorded by the city (illegal attic apartment and use of unlicensed plumber), but technically I feel that I have no grounds to counter his reasoning.

**A: allow me to clarify- there are two issues at hand. 1) the violation of the CC&R's and 2) the fines. Forget about the fines and nail the sucker on the violations. That way you eliminate all the crap about not having the votes to fine etc. There would be no argument as to the CC&R violations since that could be readily proven via the evidence the city has.

[PLT]

Thanks for the clarification HomeGuru. It is awesome to have people like yourself take the time to help others.

Per your suggestion, I've read section 6D of chapter 183A of MA General laws ([url=http://www.mass.gov/legis/laws/mgl/183a-6.htm]M.G.L. - Chapter 183a, Section 6[/url]). My legalese, is not quite up to par, but do not see where it says I can refuse issuing a 6D for violations of CC&R.

So... looks like I have to issue the 6D. But then take the unit owner to court for his violations of the CC&R and hopefully recoup legal fees as well. Is that right ?

[HomeGuru]

Originally Posted by PLT

Thanks for the clarification HomeGuru. It is awesome to have people like yourself take the time to help others.

Per your suggestion, I've read section 6D of chapter 183A of MA General laws ([url=http://www.mass.gov/legis/laws/mgl/183a-6.htm]M.G.L. - Chapter 183a, Section 6[/url]). My legalese, is not quite up to par, but do not see where it says I can refuse issuing a 6D for violations of CC&R.

So... looks like I have to issue the 6D. But then take the unit owner to court for his violations of the CC&R and hopefully recoup legal fees as well. Is that right ?

**A: you are correct but I would attach a statement to the 6D explaining the situation since at face value the 6D would assure the Buyer and lender that there are no outstanding HOA fees or fines. The real facts should be disclosed.