court hoa
HOA - General Rule Violation
<p>Sorry keeping some details private as to protect myself, but note I have a calendar log of every event that has happened.</p>

<p>In the beginning of 2018 our HOA and we as Homeowners came to an agreement that we would remove a stump with chemical stump removal - <a href="https://goo.gl/TFrKC4" rel="nofollow noreferrer">https://goo.gl/TFrKC4</a> aka Spectracide and plant two new maple trees, however the stump wanted to be stubborn and not die.</p>

<p>Disclaimer in our CCR &amp; Landscaping rules it says, "If a tree dies it must be replaced."  (Note it does not provide a time frame).  In other words, "If a tree dies it must be replaced in 2 weeks, 6 months, 1 year, etc.)  It is open for interpretation.</p>

<p>Since the stump resisted to die we thought it would be foolish to plant a new tree near the chemical as to not kill another tree.  In my Architecture Approval I did state my ESTIMATED time frame was the start time was "End of April" and the end date was "End of May" (Notice I did not include a year as per the CCR, hence a contract is a contract).  We were lucky to replace one tree, but the other has been a problem.  In August the management company started to fine us $50.00 a day which has increased to over 5000+.   After numerous phone calls to the management company and emails with no response to how we could rectify the violation we were breaking again. (Let me re-emphasize replacing a tree does not provide a time frame in the CCR).  I actually tracked the emails sent and saw it was read 50+ times by the management company and the HOA Directors and I have a log of all attempts to contact the HOA Directors and Management Company, in which the only time I got a response was when I called a member at their place of business and then was called within 3 minutes by the management company  and was threated with being charged with harassment if I ever call a member of the board at their place of business again.  When all I wanted to do was to know what violation was being broken in a kind a compassionate tone.</p>

<p>Truly I feel as though this is a shake down and extortion.   I am asking what legal action should I take?  Should I go to my "County Clerk of Superior Courts" and file a small claim of extortion in order to fill the HOA’s coffers with money?  IMPORTANT - Do I file as the Plantiff or Defendent (I simply want to see the fine go away be left alone)   I am even wanting to see the books dating back to 2008 to account for every penny that has been spent by our "Board of Directors".</p>

<p>They are bullies and we are not the only homeowners in the neighborhood with these problems.</p>

<p>I would love to have someone with legal background assist me in this road I have never traveled, but I am willing to be the David against Goliath.  </p>

<p>As I understand it you are responsible for removing the stump and replacing the tree. The fact that a particular method was agreed (and failed) doesn’t relieve you of that responsibility. </p>

<p>If a contract doesn’t specify a time for fulfilling an obligation then it must be done within a reasonable time. That is, a time that is reasonable in the particular circumstances.</p>

<p>You suggested a time of April/May - it is now November and is probably beyond a reasonable time. By not stating a year, a reasonable interpretation is that you meant this year i.e. 2018.</p>

<p>It would appear that you are in breach of your agreement and the other party can take whatever action the agreement contemplates.</p>

<p>It is hard to give a definite answer because (1) I am unsure of how much of the matter is beyond the scope of contract law (for instance, belonging to city ordinances or environment/natural resources regulation instead); (2) whether or how your credit score would be impacted if management pursues collection of the fine; and (3) knowing the exact/complete terms of contract(s) will help identify the arguments that <em>properly</em> favor your position. In (3) I say "<em>properly</em>" because I always discourage <em>pro se</em> litigants from taking vexatious approaches that typical lawyers take.</p>

<p>It appears to me that the only real issue is a fine which management has not yet seriously attempted to collect. If so, it seems pointless for you to file a lawsuit. You could file one asking for <em>declaratory relief</em> which would "determine" the (-in-)validity of the fine, but otherwise the annoyance and hassle you have endured are hardly cognizable as damages in a situation like this. One scenario, though, where bringing court proceedings might be advisable is if the law in your jurisdiction entitles a <em>prevailing plaintiff</em> (unlike merely the prevailing <em>party</em>) to the recovery of attorney fees.</p>

<p>As I said above, the exact terms of the contract matter. For instance, if the agreement/contract explicitly prescribes a <em>chemical</em> method for stump removal, proving that homeowners have timely and systematically been using such chemicals might help striking or reducing the fine. The replacement of the other tree is indicative of homeowners' efforts to honor the contract.</p>

<p>The doctrine of <a href="https://en.wikipedia.org/wiki/Contra_proferentem" rel="nofollow noreferrer"><em>contra proferentem</em></a> might apply to the contract. In other SE questions related to contract law, I have pinpointed excerpts of the contract whereby the application of that doctrine determines the outcome of that controversy. However, this can be assessed only by looking at the contract itself.</p>

<p>Likewise, evidence that management has been unjustifiably ignoring your communications since before it started fining you tends to weaken management's position. Indeed, making itself unapproachable so as to corner homeowners into a fine that grows on a daily basis contradicts the covenant of <em>good faith and fair dealing</em> that is presumed in contract law.</p>

<p>Evidence and substance of past controversies between management and other groups of homeowners might also shed light on whether this is a pattern of managers' misconduct.</p>

<p>This truly is a very fact-sensitive matter, as one comment reflects. The preceding paragraphs are only few examples of what would have to be looked at if litigation ensues.</p>

<p>Lastly, the matter would have to be litigated in (state) district or circuit court. First, because small claims courts cannot grant <em>declaratory relief</em>. And second, because the amount of the fine might already exceed the limit handled in a small claims case. In some jurisdictions (I do not know how many jurisdictions) that limit is $5,000.</p>
