Q: I live in a HOA where the BOD is using the COVID-19 Emergency to have "emergency" closed meeting via the phone. Legal?
They say they are "Grandfathered" in and the rules do not pertain to them as the attorney has told them. I want to contact the Attorney General, but was told that there is a clause in which we have to have mediation first. How do you mediate breaking the law?
A: The answer to this question will depend heavily on what allowances exist in the HOA bylaws and whether the Board of Directors is following them.
If the bylaws allow emergency meetings under conditions such as those that exist relating to COVID, it is possible the Board of Directors is acting pursuant to their own rules. If the board is refusing to mediate or not following certain rules, while at the same time demanding that you do, this too could be an issue.
As for mediation, often HOA bylaws contain some sort of an alternative dispute resolution clause that requires the parties to a dispute mediate before filing a lawsuit. Without knowing the specific language it is impossible to know how the present situation applies to the rules and vice versa.
Generally speaking, mediation can be a powerful tool for resolving conflicts while avoiding the cost (of both time and money) that most certainly would accompany filing and litigating a lawsuit.
I understand your frustration--and if the HOA is breaking a law, it could be that contacting the Attorney General is an appropriate course of action. Generally speaking, parties cannot contract to break the law, and contracts or provisions that do can be avoided or void.
Speaking with an attorney who deals with HOA disputes will be an important next step in this process. First, she or he will be able to review the HOA bylaws. Second, the attorney will understand how your situation applies to the rules. And finally, with the aforementioned information--you will be equipped with the understanding you need to determine the best course of action moving forward.
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