Ask SAM added to shell 110518

Q: Could you provide the appropriate North Carolina entity to make a complaint about a Home Owners Association not properly carrying out their duties as defined in declaration of restrictive covenants or bylaws?

R.K.V.

Answer: Unfortunately, such an entity does not exist, according to Lawson Newton, a local attorney who specializes in real estate matters.

“There is no governmental agency, board, bureau, commission or other entity in North Carolina that is established with the specific purpose of receiving and acting upon filed complaints against HOA boards which fail to properly perform duties of such board as set out in the declaration or bylaws,” Newton said.

Of course, that assumes that the failure on the part of the HOA board does not involve criminal activity such as embezzlement or misappropriation of funds.

“If that is the situation, the reader need only contact the Office of the District Attorney for the county in which the association is located and allow that office to take necessary and appropriate action,” Newton said. “Absent that type activity on the part of the HOA board, the reader is relegated to the ballot box and making his/her community aware of the purported shortcomings of the board and electing a new board of directors.”

Q: I own property in Winston-Salem and since 2011 I have been fighting running bamboo from the property next door. It has invaded my property as well as others and is wreaking havoc in my yard. I have contacted the property and owner and their property management company, neither of which will help. What else can I do?

D.R.

Answer: Since you have already tried other measures, you may have to resort to legal action.

“The reader has described what might well be determined to be a ‘nuisance’ under provisions of North Carolina law,” Newton said.

“The general rule is that every landowner has the right to the free and generally unfettered use and enjoyment of his/her land. However, such use cannot unreasonably hurt or hinder his/her neighbor’s use and enjoyment of his/her land. The injured party must establish threshold proof of the unreasonable use or conduct by the offending neighbor. If the planting and subsequent ‘out of control’ growth of the bamboo (in this situation) is found by a jury (or judge) to be unreasonable and reckless, then the reader would be entitled to compensatory monetary damages and an injunction against further ‘invasions’ of bamboo.

“This obviously requires the reader to initiate a lawsuit for nuisance against the neighbor. This would, as all litigation, be costly with no guarantee of winning. But other practical alternatives have somewhat bleak success in light of what seems to be the near impossible task of stopping the bamboo growth....

“Rarely is litigation the best alternative but due to the nature of the possible nuisance, the reader may be relegated to that course of action.”

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Email: AskSAM@wsjournal.com

Online: journalnow.com/asksam

Write: Ask SAM, 418 N. Marshall St., Winston-Salem, NC 27101 

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