Cohousing-L Mailing List: Re legal structure and function of monthly community meetings.

[Evdavwes (Evdavwes]

Hello, cohousing listserv,
 
I am a member of Westwood Cohousing in Asheville, NC, built in  1997-98.  
(_www.westwoodcohousing.com_ (http://www.westwoodcohousing.com/) ).  I  
apologize 
in advance for the long and complicated post.  Some similar  issues have been 
brought out by Norm Gauss in his recent post.
 
My question may be just a legal one, or may be more one of style.  I  am not 
sure.  I am not a lawyer, but am trying to understand the legal  issues.
 
For background, we are organized as a collection of 24 privately owned lots  
(so-called "fee simple") with a commonly owned area, including a common  
house.  We are not a condominium.   Some parts of the  NC Planned Community Act 
(_http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_4
7F.html_ 
(http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_47F.html)
 ) apply  to us, but most do not, since Westwood was 
created before the law was  enacted.  The common areas are owned by a 
Homeowner's 
Association  (HOA), Westwood Cohousing Homeowners Association, Inc (WCHA).  
This  corporation has a Board of Directors chosen at an "Annual Meeting" in  
December.  The bylaws of the corporation define that certain issues (e.g.  
electing the board) are to be decided by "owners," each unit having one  
"owner" and 
one vote.  Other issues (generally "rules and regulations") are  to be 
decided by "members," where "members" are all adults living in the  community 
(it 
appears that "absentee landlord/owners" would not be considered  "members.")  
We 
have made almost all decisions by consensus, as provided  for in the bylaws, 
but have a provision for voting when consensus fails.
 
We have monthly meetings in which we are discussing the typical issues that  
most communities face-- dogs, cats, parking, storage, etc.  From the  
beginnings until last year these were always called WCHA meetings.   However, 
there is 
a strong feeling on the part of some members that  our regular monthly 
meetings should not be considered meetings of the HOA  (or never have been 
meetings 
of the HOA), but should be "unofficial"  meetings of a social organization 
called the "Westwood Community."  Only  the "Annual Meeting" and "Special 
Meetings" called by the President of the Board  should be considered official 
meetings of the HOA.  
 
We made a decision in 2002 (before I moved here) to state the  existence of 
the group called "The Westwood Community."   However, though we have clear 
rules for operation of the WCHA, we never defined  what the rules are for "The 
Westwood Community," except for defining the  membership of the group (in a way 
slightly different from either the "members"  or the "owners" that make up the 
WCHA).  Other issues important for  any such group have remained undefined:  
for example, what is a quorum,  when the group meets and what would constitute 
a properly called meeting, what  rules it follows in making decisions, and 
whether the "Westwood  Community" has any authority to change or override 
decisions of the  WCHA or create "rules and regulations").  It appears to me 
that we 
would  need to change our bylaws and rules and regulations to fully implement 
this  decision--a step not yet taken.  For more than a year after this 
decision,  we continued to have "WCHA" meetings monthly.  Then we started 
having  
arguments among ourselves over whether our meetings were or were not WCHA  
meetings.  For the last year or so the minutes sometimes say that the WCHA  has 
met 
and sometimes say that "The Westwood Community" has met.  Obviously  we are in 
a bit of chaos here.
 
I think that those who favor the "Westwood Community" construction would  say 
that the decisions we make are "not really" rules and regulations, which by  
our bylaws the WCHA alone is empowered to decide.  We have a document  called 
"Rules and Regulations," which is not comprehensive, and rarely  modified, but 
most of our agreements are in the form of separate policies.
 
The model these members appear to want to follow is that  of a "regular" 
(non-cohousing) HOA, where a board of directors carries  out all the activities 
of 
the HOA during the times between "Annual Meetings" of  the HOA.  In many of 
these communities, there is a committee (whether  formal or informal) whose 
purpose is to organize social events and "improve the  sense of community."  I 
have heard comments from some members to  the effect that most cohousing groups 
are organized "incorrectly" or don't  understand the meaning or function of a 
HOA.
 
Those who favor the "Westwood Community" arrangement seem to think that it  
is wrong or illegal or imprudent for the HOA to have too much influence on  the 
Board's decision-making process.  I am aware that if the HOA is meeting  
regularly (say, monthly) there is more opportunity for the HOA to  "interfere" 
with the Board of Directors' functions.  The Board of Directors  acts for the 
HOA 
and in some ways legally is the HOA between  official meetings of the HOA.  
And the less frequent Meetings of the HOA  are, the more autonomous the Board 
needs to be.  However, my sense is  that most of our members want to have input 
into the Board of  Directors' actions, and that our Board historically has 
been reluctant to  act on certain issues without the agreement of the 
community. 
 In a  "regular" (non-cohousing) HOA, the board usually is empowered to 
create  rules and regulations as it sees fit, with little recourse from owners 
other  than to follow the rules or call a "Special Meeting" to reverse the 
rules 
or  remove the directors.  We have explicitly not given to our board  the  
authority to create rules and regulations, only to carry out the HOA's  
"instructions" (i.e., rules or other decisions).  My guess is that the  
"regular" 
(non-cohousing) arrangement would be antithetical to most cohousing  groups' 
sense 
of themselves.
 
We have not yet asked our lawyer (which I am sure we will want to  do) 
whether there is some legal reason why we should not be meeting  monthly as the 
HOA, 
or if there are pros and cons to creating the separate group  called "The 
Westwood Community" and perhaps changing our bylaws to give  the "The Westwood 
Community" authority currently held by the  WCHA.  We have a recorded 
conversation with our lawyer in which one of  us tried to ask him the question, 
but the 
question was not asked clearly  and he didn't really address the issue, other 
than saying that the HOA  could meet as often as it wanted to, and was free to 
direct or overrule the  board if it chose.  I sense from his comments that he 
would disapprove of  the "Westwood Community" innovation.  (He already 
disapproves of our  having written "consensus" into our bylaws, because of the 
legal 
complications  it might cause.)  
 
Finally, to get to my question (where you can help us, please):
 
I would love to hear how other communities are organized.  Are your  monthly 
(or other regular) meetings official meetings of the HOA?  Have any  of you 
developed the structure envisioned in the "Westwood Community" model,  where a 
separate "nonofficial" group meets more frequently during the year, but  the 
HOA meets only once a year or for special meetings?
 
Have any cohousing groups given to their Board of Directors the authority  to 
enact and enforce rules and regulations without the input of the HOA?  
 
I am aware from postings here that at least one group (Swan's Market  
Cohousing) has all members on the board of directors, so that their regular  
meetings 
together are actually Board Meetings.  Presumably in that case the  HOA only 
needs to meet annually "for the record."  Do any other cohousing  groups share 
this organization?
 
And finally, is anyone out there well-enough versed in the law to answer  the 
question of whether there is some legal reason that the HOA should  not meet 
monthly?  We won't depend on this as a legal opinion, of  course.
 
Thanks for reading this far, if you have.  I realize that it is a  
complicated situation.  
 
I will appreciate any feedback, including references to legal documents or  
articles that you may care to share.
 
I am sending this also to those in our community who probably have  another 
point of view on this question.
 
Yours,
 
David Clements