Outlaw HOA and Fifth Amendment Rights

[Ananisapta]

We live in North Carolina and bought a four-acre wooded lot in a development that has a sort of HOA. They don't strictly follow NC 47f -- for example, they have yet to publish election info from more than a month ago and their website has not had accurate info on Board members for nearly a year. They have two sets of covenants that don't agree with each other nor with 47f, nor do they strictly follow either set. The covenants require that lot owners get permission from their 'Architectural Control Committee' before cutting down any tree greater than six inches in diameter. We submitted a request for permission on the official form, on which we stated that we wished to remove six trees (out of more than a thousand in our densely overgrown woods), specifying in the limited space available, "They are ill-formed, dangerous a/o awkwardly placed." The Board Chair appointed her husband to head the ACC. He and one of the Board members came to our property and took some pictures. Forty days after our initial request, we got a curt letter from the Board Chair indicating that, based on photographic evidence, "The trees were deemed to not be in a dangerous position; they are not near a house or road. The trees are very healthy and not diseased." On these grounds, permission to cut a few of our own trees was denied.

We submitted an appeal to the Board on the grounds that removing those trees would help our property value by improving our view (as we had been professionally advised) and therefore would help property values throughout the neighborhood. We also mentioned that the Fifth Amendment protects us against encroachments on our property rights, absent due process. We interpret this to mean protocols ensuring that similarly-situated applicants would receive essentially similar treatment. We argued that nobody would be harmed by our removal of these trees, and that our property is so isolated from the rest of the community and our lot so heavily forested that, if we could make those six trees disappear overnight, literally nobody would notice their absence except us. We also submitted photographs showing that only one of the six trees is plumb, the rest being "leaners" that are inherently dangerous to anybody walking under them. The photos also show how, when leafed out, they block our "million dollar view" of the Blue Ridge. A Board meeting has been scheduled to discuss our appeal on 2/18, a month after we sent it. The total delay in approval is now nearly three months, and we fear the cost of the project will increase when the sap rises in March and tree surgeons get busy. The fellow who gave us the best price clearly wanted to complete the work before Christmas.

I'm interested in advice about the legal aspects of our case. Also, what's the worst they can do to us if we go ahead and cut those trees without their permission? Obviously, we'd rather not spend thousands on legal advice to avoid a few hundred dollars in fines. Unfortunately, the Board is composed of persons who lack sophisticated verbal understanding, and I fear the Board Chair not only despises me personally but has early onset dementia impairing her executive capacity. Any hint about how to talk to such people productively would be especially welcome!

 

[xylene]

Get a lawyer.

 

[adjusterjack]

I'm interested in advice about the legal aspects of our case.

I have to agree with xylene that you need a lawyer. That you think this has anything to do with fifth amendment rights indicates that you are clueless about the legal aspects of your case. This is a civil matter, a matter of contract, and you need to get this into court and get a judge to compel the board to allow you to cut down the trees.

 

[Just Blue]

https://www.google.com/search?q=5th+amendment&rlz=1C1JZAP_enUS863US868&oq=5+th+&aqs=chrome.1.69i57j0l5j46l2.4627j1j8&sourceid=chrome&ie=UTF-8

 

[Taxing Matters]

We also mentioned that the Fifth Amendment protects us against encroachments on our property rights, absent due process.

Our rights under the U.S. Constitution, and the Bill of Rights in particular, are protections against government action. Thus, the Fifth Amendment protects you against the government taking your property without due process, among other things. A HOA is not a government body. It is a private association and your rights are determined by the state statutes that regulate HOAs and the various covenants (contracts) that form the basis of the HOA. Since reading those covenants is extremely important to know what power the board has to deny your request to take down the trees I can't tell you how to proceed or what will happen should you cut them down without consent. I suggest you consult a local lawyer who has experience with HOA matters in your state for the advice you need. After the lawyer has read the convenants, etc., that regulate your HOA he or she can help you come up with a plan to tackle the problem.

 

[Ananisapta]

Thanks for the input! I guess I was confused about the Fifth Amendment aspect of this case. An HOA collects a sort of tax and uses it to fix roads, and it presumes to tell you what to do and fines you if you don't, so it sort of behaves like a government. Hopefully they'll see reason Tuesday evening so we won't need to take this further. Local attorneys that I could trust seem a bit thin on the ground... which is how this HOA got its foundation documents into such a mess to begin with.

Since you asked, here are a few extracts that I think are relevant:

Phase I Covenants:

The Association shall select an Architectural Control Committee to perform the functions set out herein and such other functions as shall be assigned it.

No tree 6” on diameter or larger may be cut without written approval of the Committee, except for approved driveway, home-site, well, or placement of a septic system as required under permit issued by the Henderson County Health Department, except where such tree or trees lie within an area defined as the footprint for the residence and a shoulder of forty (40) feet in with around said footprint.

If the parties hereto, or any of them, or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any person or persons owning any real property situated in said development, or the Developers, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenants and wither to prevent him or them from so doing and/or to recover damages or other dues for such violations.

Further, after the formation of the Association it is understood that the Developer reserves and shall have the right to alter the restrictions when needed.

Enforcement of these restrictions, easements and covenants shall be by action against any person or persons violating or attempting to violate any covenants, either to restrain violation or to recover damages, or both. the party bringing the action shall be entitled to recover, in addition to costs and disbursements allowed by law, such sums as the court may adjudge to be reasonable for legal services and fees.


Bylaws:

Powers and Duties of Board of Directors --
To enforce the provisions of the Declaration, the Bylaws, and the Rules and Regulations of the Association by all legal means, including injunction and recovery of monetary penalties;
To levy reasonable fines for violations of these Bylaws, the Declaration, or the Rules and Regulations of the Association;
To exercise all other powers that may be exercised in North Carolina by legal entities of the same type as the Association;


Chapter 47f:

Unless a specific procedure for the imposition of fines or suspension of planned community privileges or services is provided for in the declaration, a hearing shall be held before the executive board or an adjudicatory panel appointed by the executive board to determine if any lot owner should be fined or if planned community privileges or services should be suspended pursuant to the powers granted to the association in G.S. 47F-3-102(11) and (12). Any adjudicatory panel appointed by the executive board shall be composed of members of the association who are not officers of the association or members of the executive board. The lot owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decision. If it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs. Such fines shall be assessments secured by liens under G.S. 47F-3-116. If it is decided that a suspension of planned community privileges or services should be imposed, the suspension may be continued without further hearing until the violation or delinquency is cured. The lot owner may appeal the decision of an adjudicatory panel to the full executive board by delivering written notice of appeal to the executive board within 15 days after the date of the decision. The executive board may affirm, vacate, or modify the prior decision of the adjudicatory body.

Problems with the HOA in 2019 (as of year-end):

1. The Board hasn't posted minutes of the Members' Meeting last March, nor of any of the Board's meetings. The Board has not disclosed to the Members any substantial account of its activities and plans. There are supposed to be five members but one position has been listed as 'vacant' most of the year with no explanation.

2. The Board did not disclose its budget for 2020 by 10/1/19 as required by its By-laws section 8.01(c).

3. The Board hasn't published any account of an independent audit of its finances in recent years.

4. The Members have twice voted to instruct the Board to hire competent counsel and move expeditiously to bring the Association's foundation documents into compliance with current state law. Such a task might reasonably have taken nine months to complete, but remains incomplete after three years.

5. The Board failed to publish information about Board officers within thirty days after their election as required in Chapter 47(f)-3-103(f).

6. The Board has taken more than 30 days to respond to a minor tree-cutting application.

7. The Board lost the services of its volunteer web administrator through its refusal to provide evidence of liability insurance. Chapter 47f-3-102(14) requires the Board to "Provide for the indemnification of and maintain liability insurance for its officers, executive board, directors, employees, and agents;" Even if your web administrator does nothing wrong, he could still be caught up in a lawsuit and would need to provide his own legal defense, which could cost thousands of dollars. It is customary for businesses to provide evidence of liability coverage when requested by other parties.

 

[Mass_Shyster]

Disclaimer: I am not an attorney licensed in North Carolina. I am not suggesting you take any of the following actions. I am suggesting you contact an attorney to examine the repercussions of taking these actions.

One option is to go ahead and cut the trees and let the chips fall where they may. (bad pun intended). It appears the board may have the authority to fine you $600 for doing so. ($100 per tree). I suppose they could claim the fine is $600 per day until you replace the trees, but the prohibited act is cutting trees, there is no prohibition on not having trees. It also seems they can sue you in court for damages, and if they prevail, you end up paying their legal bill.

If prices fluctuate seasonally, you could consider waiting until December to do the evil deed. It would make sense to get it all done at once, removing all debris. It's entirely possible "they" will never find out.

 

[adjusterjack]

An HOA ...sort of behaves like a government.

Behaves like, but isn't.

here are a few extracts that I think are relevant

Here's a few questions that I think are relevant:

1 - Would you volunteer to be a board member?
2 - Do you have 4 other homeowners that would volunteer to be board members?
3 - Are there enough unhappy homeowners in your HOA to vote out the current board and vote in a new one?

If you answer yes to all three, then you have your solution.

If you answer no to any of them, then you may end up in litigation.

One option is to go ahead and cut the trees

I like that option. You could let this dispute die down and get forgotten. Then remove them one at a time over a period of time. (Not legal advice.)

Anyway, I think there should be a warning sign at the entrance to any HOA community:

"Abandon Hope, All Ye Who Enter Here."

 

[Ananisapta]

It also seems they can sue you in court for damages, and if they prevail, you end up paying their legal bill.

The $600 wouldn't bother me, but I wonder on what grounds could they claim that removing some ugly, probably dangerous, and obstructive trees on my property that could not be seen from other homes or highways, potentially improving my property value and theirs, could constitute an injury to my neighbors?