[jfantalis]

My HOA signed a contract with a trash company. The contract had a lot of blanks that are filled in by hand (rate, address, etc.) In the main contract language the HOA manager added a clause hand written in and initialed it. When I asked the trash company to send me the contract they sent it to me in PDF and it includes all mentioned above.

They are now saying that the clause that was hand written in is not valid because they did not initial it.

I contend that there are lots of things hand written in. The final signed version has that clause and it was the one that they had as the final version so its not like we had that version and they had a version without it.

Thoughts?

[ScottGem]

Any handwritten additions need to be initialed and dated by both parties, except for blanks that are meant to be filled in.

However, if their copy includes an addendums then an argument could be made that its valid.

[ebaines]

Did the manager have a discussion with the trash company about the amendment he made, and if so did they agree verbally to it? Also, when did this occur - has the trash company been providing service under this contract? If so you can argue that this shows implicit acceptance of the hand-written amendment. If not - then you should insist that they initial the amendment. The fact that there are other hand-written fields is not relevant, assuming that there are blank lines in the contract that make it quite clear what information is to be written in.

[jfantalis]

More detail: The amendment was limiting how much they could increase their fees each year. I am told this is a normal amendment to these type of contracts. I don't have any information on what was discussed at the time but I am sure it was discussed (it wasn't snuck in there). The contract was signed in 2006. I just joined the HOA board and noticed that they have increased our fees over the amount in the amendment. I am checking if they did only increase it some years exactly that amount from the amendment (which would show they did know about it).

[ScottGem]

The contract was signed in 2006.

As ebaines said, if they have been performing services under this contract, then they can't say the clause is invalid.

On the other hand, the clause needs to be read carefully. Is the amount of increase limited to being calculated year to year or can it be averaged out.

[jfantalis]

It states "rate adjustment may not exceed 6% per year". What I am asking for is for them refund the total amount we have paid over the amount we should have. They are saying there attorney is saying it is not a valid clause.

[ScottGem]

Well tell them your legal advisors have told you that it is valid and why. I would start looking for another provider and tell them if they don't refund the overcharge, you will take your business elsewhere and sue them for the overcharge.