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CCOC Decision Summary

#66-12, Gold v. Fallstone Homeowners Association (June 28, 2013) (Panel: Fleischer, Brandes, Zajic)

The homeowner complained that the president of the HOA’s board of directors was improperly obtaining favors from the board, because the board was allowing her exclusive parking rights in the common areas of the association.  In particular, he claimed that, at the request of the president, the board removed a “fire lane—no parking” sign from the street in front of the president’s house, that it painted over the fire lane markings on the curb in front of her house, that it ceded control of the common property to her exclusive parking use, and finally that it paid for a survey of her property with common funds.   He further claimed that all these decisions were made in secret by the board of directors.

The association denied the charges.

The evidence showed that ever since its inception the HOA had maintained the road (a dead end road, on which the lot involved was the last lot at which the road ended) at common expense.  The road had always been marked as a “no parking—fire lane” road and the HOA enforced that restriction. 

The board president—a new owner of the lot involved-- did not have a driveway long enough in which to park cars outside the garage without the cars sticking into the street.  All of the other lots in the HOA have driveways long enough to accommodate full-size cars within the span of the driveways.  In addition she claimed that her property survey showed that she owned all of the street in front of her home, and she requested a review of the no parking designation because she wanted to park in the street.  The County fire marshal inspected the street and concluded that it was not a fire lane under county law and that the “no parking—fire lane” signs could be removed.  The association removed the no parking signs and repainted the curb at its own expense.  That portion of the dead-end street in front of the president’s house was part of her lot.

Shortly before the hearing in this matter, the HOA provided to the complainant a copy of an easement filed by the developer of the HOA.  The easement affected that dead-end street only.  Under the easement, the street was for the benefit of all HOA members, and no parking was allowed except on a temporary basis.  Following the president’s request, the board agreed to hire a surveyor to mark the boundaries of her lot.

None of the HOA’s minutes that were offered into evidence show that the board of directors ever formally considered, and voted upon, the request to remove the fire lane designation or to allow the president to park cars in the street.

The hearing panel held that whether or not the street was a fire lane was within the sole discretion of the Fire Marshal, and the Commission had no authority to make any findings on the issue.

The hearing panel held that the repainting of the curb with association funds was proper.  The association had a legal duty under the easement to maintain the street and its curb.

The hearing panel found no evidence of a “secret agreement” between the association and its president under which the association would maintain property that the president claimed was hers.  On the other hand, the panel said there was circumstantial evidence that such an agreement may have been under consideration.  Among other things, the HOA was paying for snow removal on that dead-end street, as well as on others not involved in this dispute; and in one of its filings the HOA claimed that the association had made “no decision” concerning the maintenance of the street.   Yet, according to the panel, the easement required the HOA to maintain the street and banned parking on it except for limited purposes.

As to the issue of surveying the president’s private property with common funds, the panel found such an expense was recommended by the HOA’s attorney as possibly helpful to the ultimate resolution of the dispute, and therefore within the board’s business judgment.    The board’s approval was given at an open meeting.  Moreover, even if the board was in error, the panel had no jurisdiction over the president as an individual since she was not a party to the case, and it could not order her to refund the money.

The hearing panel therefore ruled that the HOA must maintain the dead-end street consistently with its duties under the easement.  However, it also concluded that the complainant had violated the parking rules of the HOA by taking it upon himself to enforce them and by confronting vehicles owners who, in his opinion, violated the parking policy.  The panel ordered him to cease such activities, and instead to report any apparent violations to the board or the HOA manager.

 At the conclusion of the hearing, the HOA requested that the complainant be ordered to reimburse it for its legal fees on the grounds that the complaint was frivolous and pursued in bad faith.  The panel denied the motion, because the HOA had refused to mediate, nor had it disclosed the existence of the easement until shortly before the hearing.  Had it disclosed the easement as part of a mediation the case might have been settled and a hearing avoided.  It was only as a result of the complainant’s pursuit of this dispute that the relevant facts and documents came to light.  Although the panel found that some of the issues in the case (the $281 repainting fee and the $800 property survey fee) bordered on the frivolous, they did not merit an award of attorney fees against the complainant.  The panel did, however, refuse to order the HOA to refund the complainant’s $50 filing fee. 

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