Violations of the law put the legality of the HOA in question.
The rules for the election of committees are not followed.
The Condominium Regime law for BCS states that the Vigilante/Oversight committee must be elected by the Property owners’ assembly of the Regime.
No bylaws or amendments for bylaws for the HPV Condominium Regime can overwrite these legal requirements and specify different rules for the election. As Table 1 “Assemblies over the years” shows, there were many years where there were no Assembly for the Regime and therefore no Vigilante/Oversight committee elected.
Vice versa, the Board of directors for the Association gets elected by the Assembly of the Homeowners Association AC and over the last years there were no Assemblies for the Association.
Per the Condominium Regime Law for BCS members of the Vigilance/Oversight Committee have a 2-year term limit. Therefore, the 2022 elections were incorrect because some members of the Vigilance/Oversight Committee were elected in violation of term limits.
These legal issues are known since years and no actions have been taken to resolve them. The 2017 Assembly minutes document how these problems were simply ignored and have been going on for a long time.
Regulations are selectively applied.
The regulations of an HOA become unenforceable if they are not equally and uniformly in a consistent manner applied. If one homeowner is given exceptions from the design guidelines, another homeowner cannot be denied. This may not look like a problem at first, but it will become obvious when one homeowner decides not to follow to guidelines and goes to court demonstrating to a judge that the regulations are not equally and uniformly applied.
Favoritism and exceptions in violation of HOA regulations, even if given with the best intentions, will weaken all HOA regulations and may defeat one of the purposes to have an HOA in the first place.
One example: since years certain internet antennas are tolerated in violation of our design guidelines. The reason is understandable, people need internet, and the antennas are the only way to obtain it. But the solution is not to sit on one’s hands while regulations are violated, but modify the regulations to allow those antennas as long as they are the only viable option for internet access.
Another example is the Vigilance/Oversight Committee is by law tasked to oversee that the regulations and laws are followed by a Condominium Regime. If the Vigilance/Oversight Committee take on other tasks, like attempts to control which homeowner proposals are brought to an assembly and which ones not, they violate the law and weaken the HOA.
The law is not known and not understood
This is a common problem for many HOAs. The homeowners and board members have none or insufficient knowledge of the regulations and laws that apply to an HOA.
The legislature in Baja California Sur actually acknowledges this when it states in article 62: “Any person who is a condominium manager, member of the management committee or of the Vigilance/Oversight Committee of a condominium must have the necessary knowledge for the performance of his duties.” And in Title 9 Article 70 there are specific fines given for the contravention of the provisions of the Condominium Regime Law.
In HPV, we are currently working with bylaws version 3. These bylaws contain multiple illegal regulations. For example, in the years 2016, 2017 and 2019, the Assembly for the Homeowners Association protocolized amendments to the bylaws of the Condominium Regime. Well, those bylaws can only be legally amended by an Extraordinary Assembly of the Condominium Regime, which was not held in those years. Therefore, under the view of the Law, these amendments are null and void.
Our Design Guidelines are affected in the same way, and lots of sorting out will need to happen to get this back to a version that complies with the law.
The point here is people involved in the condominium management need to be knowledgeable about the Law.
These issues need to be resolved so our HOA can move forward on a legal basis.
Table1 : Assemblies over the Years
The table summarizes the different General Assemblies as they were protocolized in public record.
If we take the year 2016, the charts reads like this. There was a General Assembly held for the Civil Association, which was properly registered and notarized. The Assembly elected the Board for the Civil Association, made decisions about bylaw changes for the Condominium Regime and elected the Administrator for the Condominium Regime. Which is legally problematic, as the authority by law to change bylaws and elect Administrators for the Regime is the General Assembly of the Regime, which did not have a meeting.
This would mean the bylaw changes from 2016 and the appointment of the Administrator were legally null and void.
The rows for other years can be read analogous.
