MI condo owners ask — is “breaking and entering” just a “civil matter?”

By Deborah Goonan, Independent American Communities

Ed Zaorski and Tony Richter, two Catholic priests serving the Detroit area, have owned a condo at Harbour View Pointe, Linwood, MI, for nearly 7 years. The modest lake view property serves as a peaceful respite from their hectic city lives.

Each of the 23 homes in the Harbour View Pointe has a front porch overlooking majestic Lake Huron.

In early 2015, Zaorski and Richter decided to make that view even more enjoyable by enclosing their front porch. The plan was to install top quality casement windows that would provide much needed protection from Michigan winds and harsh seasonal weather.

The owners submitted detailed plans with drawings to their HOA. Those plans were approved by the board in March 2015. Zaorski served on the condo board at the time, and he recalls approving meeting minutes documenting that board President Marty Fish-Flores made a motion to approve the porch enclosure request, and then the board voted unanimously in favor.

(Pixabay.com)

 

In Fall of 2015, the homeowners hired a qualified contractor to complete the work. Prior to leaving on a sabbatical, Zaorski submitted a written notice to Fish-Flores that the porch improvement would soon begin, and that, in his absence, the board should contact Richter with any concerns.

As the project was near completion, Richter requested and received from Fish-Flores the correct paint number (PMS code) in order to match the condo association’s standard exterior color. All seemed to be going as planned.

However, as the final detail work was wrapping up, Zaorski says Fish-Flores suddenly objected to the newly installed porch enclosure windows. The Board President insisted that, according to HOA rules, porch enclosures were to use sliding windows instead of casement windows.

Zaorski and Richter were taken aback, because their board-approved drawings had clearly noted the work would include installation of vinyl casement windows.

Besides, when closed, both types of windows are nearly identical in appearance.

Nevertheless, the homeowners received official written notice from the HOA that their brand new windows would have to go.

Having just spent $18,000 on their porch improvement, the owners appealed, but it didn’t do any good. Unfortunately, the association had never provided Zaorski and Richter with an official letter of approval for their project, despite the board’s vote of approval in March 2015.

The reality is, many small associations, especially if not professionally managed, tend to operate informally, relying on verbal agreements and loosely organized meetings.
An important lesson for the reader – be sure to obtain all architectural or landscape approvals in writing, including a copy of the detailed plans approved by the association.

 

 

The condo association promptly sued Zaorski and Richter — spending more than $30,000 in the process — to compel them to remove and replace their brand new patio enclosure.

Because of the financial burden the lawsuit was imposing on the association, the homeowners, through their legal counsel, decided to settle out of court in binding Arbitration on Aug 30, 2016.

Zaorski and Richter agreed to remove vinyl casement windows and replace them with vinyl sliding windows. In return, the association agreed to pay for new materials and to provide installation and labor through their chosen contractor, D&W Awning and Window Company. The settlement clearly states that any changes to its terms would require mutual agreement, and must be in writing.

Importantly, the agreement also stipulates that the association may not enter the homeowners’ condo unit without prior written consent of Zaorski and Richter.

August 30, 2016 settlement between Richter & Zaorski and Harbour View Pointe Condominium Association.

But before the ink could dry on the Arbitration agreement, Fish-Flores insisted that the new sliding windows must have aluminum frames instead of vinyl.

The homeowners had deliberately chosen to upgrade to easy-to-maintain vinyl windows with better insulating qualities, but the HOA President wanted to replace higher quality windows with lower quality aluminum sliding windows.

The aluminum replacement windows were valued at about $10,000 less, thereby saving the HOA money, but breaking the binding arbitration agreement.

By this time, the homeowners were understandably frustrated. Several of their neighbors supported the two priests, agreeing that the board had gone too far.

In order to stop the ongoing legal conflict, most Harbour View Pointe homeowners agreed that the current 5-member board of directors, including Zaorski, needed to step down and allow 5 new owners to serve on the board.

 

(Pixabay.com)

 

A recall was staged in November 2016, with what appeared to be sufficient votes to oust the Fish-Flores board. A newly installed board then informed the homeowners that they could keep their casement windows.

Richter and Zaorski breathed a sigh of relief, because they thought the matter was resolved.

However, their recall attempt was immediately challenged  in court by Fish-Flores and her allies. The attorney for the Association , James Hammond, argued that, according to the bylaws for Harbour View Pointe, each unit owned by more than one person must complete a form designating a single legitimate voter.

Unfortunately, the association had not followed this official protocol for several election cycles. Therefore, voter designation forms were missing for several units, and those recall votes had to be thrown out. Ultimately, there were not enough votes to certify the recall, which was then ruled invalid by a Judge.

While the members began to organize a second recall attempt — this time making sure each unit had an officially designated voting member — board President Marty Fish-Flores and VP Phillip Meir consulted with Attorney Hammond, who pressed the board to enforce the covenants while they still had the chance to do so.

So on January 9, 2017, on a day when the homeowners were not staying at Harbour View Pointe, Fish-Flores, Meir and his wife Suzanne, and Larry Doyle (a former Board Secretary) decided to take action. According to court records, the four homeowners participated in breaking door locks, entering the front porch of the homeowners’ condo unit, and destroying the newly installed casement windows.

Board members then instructed their window contractor, D&W, to install new sliding windows, all without the consent of Zaorski and Richter. D&W denies any role in removing, breaking, or disposing of the vinyl casement windows.

 

 

 

The incident was reported by Channel 12 (Flint MI).  At the time, Attorney Hammond went on record stating that the newly installed board was incorrect in deciding to allow the casement windows to remain, and that the homeowners must be forced to abide by the rules.

In case you missed it, here’s the earlier post:

MI condo association being sued by priests for breaking and entering Independent American Communities (Feb. 21, 2017)

And here is the story as it was covered by Channel 12 Flint Michigan (see video).

 

According to Richter, Bay County Police were called to the scene, but they declined to pursue charges for breaking and entering. The homeowners were told the dispute is a “civil matter.”

To make matters worse, because they were installed under duress and in adverse weather conditions, some of the newly sliding windows would not open and close properly.

Two days later, on January 11, Fish-Flores instructed a contractor to change the locks at the homeowners’ property, also without their permission.  Richter arrived at the property while the work was in progress. He called the police for the second time in less than a week. A Bay County officer advised the association to stop changing the locks, or face arrest.

 

Richter reported these incidents to his insurance company on Jan 12.

After receiving several verbal threats from two board members, he and Zaorski also filed a protection order (PPO).

However, that PPO request was denied two weeks later. Instead, a Bay County Judge ordered a restraining order against the two priests, ordering them not to touch the new sun porch windows. A Judge later dismissed that restraining order in February.

In May 2017, homeowners recalled the Fish-Flores board for a second time. Once again, the ousted board refused to step down, challenging the recall.

Finally, in Nov 2017, a judge validated the second recall, officially certifying a new 5-member board. A confidentiality agreement was executed between the recalled and new boards, including consideration of legal costs to be absorbed by Harbour View Pointe Association.

Zaorski says the entire ordeal, as frightening as it was, has brought many of the owners together. He is hopeful that life at Harbour View Pointe will be more harmonious with a much more reasonable board.

 

Homeowners’ Lawsuit update

Following the break-in of their home, Tony Richter’s brother, Attorney Gerald Richter, represented the homeowners in civil court at no charge.

Richter and Zaorski sued 4 individuals and D&W Awning and Window Company. D&W then sued Harbour View Pointe Condo Association in a third party lawsuit.

Fish-Flores, as well as Phillip and Suzanne Meir, were each represented by attorneys provided under the terms of their individual insurance policies. James Hammond provided legal services on behalf of the association.

Since the settlement that resulted from the civil lawsuit is not confidential, Zaorski provided me with a copy as shown in the window below:

According to the terms of agreement, insurance companies for board members agreed to reimburse the homeowners $4,000. Defendants also agreed to pay homeowners another $500 toward electrical repairs, and to contract for labor necessary to finish the porch enclosure, both inside and out.

After living with a poorly installed sun porch for nearly a year, it has finally been restored — for a second time — as of December 2017.

Zaorski says he is grateful that he and Tony Richter did not have to bear the cost of attorney fees to assert their rights in court.

Most residents, under similar circumstances, would have to personally pay attorney fees of $20,000 or more in hopes of recovering a few thousand dollars in property damage. Consequently, many homeowners opt not to sue their HOAs.

It is an unfortunate fact that high legal costs serve as a barrier to justice for thousands of residents of association-governed communities in the US.

As for legal costs incurred by the association, Zaorski says that, just prior to settlement, Hammond had accumulated more than $100,000 in legal fees.

 

 

Has anyone been held accountable?

In Sept 2017, Zaorski and Richter had a meeting with a Bay County Prosecutor, who concluded that there is not enough evidence to pursue criminal charges against the four neighbors that acted in concert to break in and destroy their personal property.

Zaorski says that his FOIA request for a copy of the  police report has not been  honored.

James Hammond, the attorney who had advised board members at the time of the incident, no longer works for Harbour View Pointe Condo Association.

However, Hammond or someone from his law firm continues to represent at least four municipalities in Bay County.

In summary, according to Zaorski:

The board was successfully removed, there has been a civil settlement agreement but no cooperation from Bay City Prosecutors Office or Bay County Sheriff Office in pursuing criminal charges which many have said, in the name of justice, must be pursued.

And that comes as no surprise to HOA reform advocates across the U.S.

From personal experience, many homeowners know that when it comes to disputes involving association-governed communities, the typical response from police and criminal prosecutors is “it’s a civil matter.”

 

Why did this happen?

Harbour View Pointe is a small community with only 23 units and a 5-member board. The association is not professionally managed.

In small association-governed communities, disagreements and conflicts tend to become intensely personal. With just a few residents living in close proximity, it’s nearly impossible to avoid a difficult neighbor or the community bully.

When asked what might have prompted former board members to enter his home unannounced, and to destroy perfectly good windows, Zaorski explained to me that he had served on the condo board leading up to this incident. On several occasions, he disagreed with the board President, Marty Fish-Flores, on certain issues discussed in board meetings.

Zaorski recalls that those challenges to the President’s authority were met with hostility during the board meetings.

But he never imagined some of his own neighbors would enter private property without permission, and deliberately destroy a brand new front porch enclosure.

 

Reference:

An attorney’s article explaining the designated voter in MI

Understanding the Difference between a Designated Voter Representative Form (DVR) and a Proxy in Michigan Condominium Association Elections

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