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Sorry keeping some details private as to protect myself, but note I have a calendar log of every event that has happened.

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 - https://goo.gl/TFrKC4 aka Spectracide and plant two new maple trees, however the stump wanted to be stubborn and not die.

Disclaimer in our CCR & 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.

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.

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".

They are bullies and we are not the only homeowners in the neighborhood with these problems.

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.

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    By definition, plaintiff is the party who files a complaint. Defendant is the party sued. The defendant may thereafter file claims against the plaintiff in the same case. If so, the defendant would be also called cross-plaintiff, and the plaintiff would be cross-defendant. Oct 30 '18 at 21:46
  • Do you think I have a case I can win and only ask to be reimbursed for court fees and the summons costs. What else could I sue for? My time because this has taken a lot of time out of my life and the price attorneys get paid. Just a question. Ty for reponding.
    – Moojjoo
    Oct 30 '18 at 23:09
  • Also, the loophole in the CCR contract. It is a loophole and should stand up shouldn't it. I mean I keep my yard in tip top shape. We just had some weak trees in the yard.
    – Moojjoo
    Oct 30 '18 at 23:11
  • This is going to be a very fact-sensitive matter. I rather suspect that when the rules say "If a tree dies it must be replaced." but no time is stated, it will be read as if it read "within a reasonable time", leaving what is reasonable to a case-by-case judgement. You will probably need to consult a local lawyer. Also, "extortion" is normally a criminal charge, not a matter for a civil lawsuit or a small claims court. You also don't mention what jurisdiction this is in. Oct 30 '18 at 23:23
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    I think this is asking for specific, individual legal advice, which is out-of-scope for this site. Oct 30 '18 at 23:24
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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.

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.

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.

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

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  • legal-dictionary.thefreedictionary.com/loophole - An omission or Ambiguity in a legal document that allows the intent of the document to be evaded. Loopholes come into being through the passage of statutes, the enactment of regulations, the drafting of contracts or the decisions of courts. A loophole allows an individual or group to use some gap in the restrictions or requirements of the law or contract for personal advantage without technically breaking the law or contract. --- Couldn't that work to my advantage?
    – Moojjoo
    Oct 31 '18 at 12:22
  • Our HOA has a history of shaking down and extorting money from home owners. And I just feel that it is time to be the David to Goliath. The real problem is all homeowners do not pay their dues and they are trying to offset their loses.
    – Moojjoo
    Oct 31 '18 at 12:24
  • Finally as I said, "I am going after the HOA Bookkeeping after this to check every receipt and dime spent".
    – Moojjoo
    Oct 31 '18 at 12:25
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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 properly favor your position. In (3) I say "properly" because I always discourage pro se litigants from taking vexatious approaches that typical lawyers take.

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 declaratory relief 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 prevailing plaintiff (unlike merely the prevailing party) to the recovery of attorney fees.

As I said above, the exact terms of the contract matter. For instance, if the agreement/contract explicitly prescribes a chemical 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.

The doctrine of contra proferentem 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.

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 good faith and fair dealing that is presumed in contract law.

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.

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.

Lastly, the matter would have to be litigated in (state) district or circuit court. First, because small claims courts cannot grant declaratory relief. 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.

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  • More info I have received a letter (Not Certified) with intent to place a lien on my home, for this issue. The letter stated $3600 and when I called yesterday they stated it is over $4000.00 when my HOA stated that the work I did met their requirements. The management company is terrible. I believe I am going to head to Small Claims in the County file a case against court cost and their attorneys fees. I tried to call their attorney yesterday, but guess what. No return phone call again. So unprofessional.
    – Moojjoo
    Oct 31 '18 at 12:20
  • legal-dictionary.thefreedictionary.com/loophole - An omission or Ambiguity in a legal document that allows the intent of the document to be evaded. Loopholes come into being through the passage of statutes, the enactment of regulations, the drafting of contracts or the decisions of courts. A loophole allows an individual or group to use some gap in the restrictions or requirements of the law or contract for personal advantage without technically breaking the law or contract. --- Couldn't that work to my advantage?
    – Moojjoo
    Oct 31 '18 at 12:22
  • Loopholes might relate to contra proferentem but not always. It really depends on the language of the contract. The lien is additional information that may merit filing a lawsuit, because now the controversy is not limited to declaratory relief. Oct 31 '18 at 12:35
  • What if every house in my neighboorhood violates the CCR because after there trees fell they did not replace them. Another rule is commercial vehicles are parked in driveways. It is a blantant favoritism. I can take pictures upon pictures.
    – Moojjoo
    Jul 26 '19 at 2:00

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