Spiteful Conduct by Board Member

QUESTION:

I belong to an incorporated HOA here in VA, and the VP of the Board of Directors made a petty issue about where I park within the community (there are no assigned spaces).  He then followed me to my house and pointed out 2 very tall trees (damaged in multiple storms & shedding limbs) which are near my house but on common property.  He then said he intended to withhold having either of these trees examined when the time comes to call in the tree care company to assess which trees are in danger and have unhealthy trees/limbs tended to throughout the community.  

Would this be a violation of any housing laws or association laws - for him to state his unilateral decision to withhold services for some areas of the community, but not others, based on his personal feelings?  Could the HOA have additional liability issues if one of these trees damages property or injures someone because of the willful (in)action of an individual board member?  I personally feel that this board member needs to be removed immediately, but I don't know how to make the gravity of the situation abundantly clear to the other board members.  Or am I just totally shooting in the dark here?

 ANSWER:

A board member has a fiduciary obligation to the Association to act in the Association's best interests.  If the Association could be liable for damage caused by the trees, then it does not seem to me that intentionally ignoring the situation out of spite over an unrelated matter would be consistent with this fiduciary obligation. 

Whether or not the Association could be liable as a general matter if the trees are ignored and damage someone or something could depend on what is stated in your governing documents.  For example, some governing documents contain a general limitation or waiver on an Association's liability to owners for negligent action or inaction.  As a general matter, such waivers, if they are found in the governing documents, are valid, at least against claims for property damage.  A waiver of liability such as this probably would be ineffective if personal (bodily) injury occurs.

An officer or board member of an association intentionally ignoring a known danger could impact a couple of things, from a legal perspective.  First, the Association could be accused of intentional misconduct, instead of merely negligence, and this might open the way to a claim for punitive damages.  Additionally, volunteer board members of an incorporated association usually are shielded from individual personal liability for their actions as board members (you cannot sue the board members individually, only the association).  However, this protection is not provided if the if board member "engaged in willful misconduct or a knowing violation of the criminal law."  If the facts are as you describe them, there is certainly a claim that the officer's actions are willful misconduct.

I would write a letter to the board alerting it to the condition of the trees on the common area, and requesting that the association perform maintenance on the trees to remedy any dangerous condition.  I would recommend sending it certified mail and retaining a copy with your receipt for certified mail.  In this way, if the tree causes damage you can establish that the Association was on notice of the condition.

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