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BobT2
(California)
Posts:43
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| 03/31/2008 12:48 PM |
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I live in a small HOA. I have been getting letters in the mail for the last six months that are for $100.00/month fine. I just got one on March 20th and the fine is for April on the statement and it is not even April. The statement just says "violation"
I have asked the HOA board and the management company several times in writing, phone calls and email, and registered mail for the actual CCR or Rule and Regulation section that I have violated. I have never been given a response. Is this the way it works? The HOA gets to violate me without a reference to a CCR section or Rule/Reg? We have a meeting in a couple days should I stand up in the open session part and ask them in front of the rest of the people? What if they never answer me can they keep the monthly fines going without an explanation? I think I know that they want me to move my truck from my driveway but the ccr's or rules dont forbid parking in my driveway. As a matter of fact everyone parks their truck/car in their driveway. |
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BrianB
(California)
Posts:1732
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| 03/31/2008 12:57 PM |
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go to the meeting, and ask. Very helpful to have handy all the dates and times you left messages, sent letters, etc. to request clarification.
they need to tell you the exact rule you are being cited for. |
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DonnaS
(Tennessee)
Posts:2792
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| 03/31/2008 1:26 PM |
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Also Bob, do some research on the internet. Go to the California Davis/Sterling Act or Sterling/Davis Act. That will tell you about the State laws on HOAs ability and how to fine a homeowner. If you genuinely did not recieve a registered letter from the Board and did not get a hearing on your violation, then they are probably fining you without proper due process. |
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NoelleC
Posts:0
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| 03/31/2008 4:12 PM |
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| I agree, go to meeting and ask specifically what the fine is for. For all you know, it may be in error! |
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ChuckB2
(Washington)
Posts:14
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| 04/01/2008 9:40 AM |
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Also, read your HOA CC&Rs to see if you can determine if you are violating any protective covenants. I would do this before going to the meeting. It might be worthwhile (after reading the CC&Rs) to take a look around and see how many violations are being ignored. If there are ignored violations then make sure you bring those up at the meeting. The association should not be fining people for violations and ignoring others, but it happens.
Remember that board memebers are almost always volunteers so don't beat then up unnecessarily for something they are doing for you and others for free. One thing that really gets under my skin is someone that demands I do things for them but never volunteer or help out when we need help.
Good luch.
Chuck |
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SusanW1
(Michigan)
Posts:2116
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| 04/01/2008 6:45 PM |
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"One thing that really gets under my skin is someone that demands I do things for them but never volunteer or help out when we need help."
Unfortunately, serving on the Board means just that. You serve, they get.
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BobT2
(California)
Posts:43
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| 04/02/2008 6:50 AM |
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| Susan, What are you trying to say? |
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PaulM
(Pennsylvania)
Posts:1347
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| 04/02/2008 7:21 AM |
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BobT2: If you 'think' you know they don't want you to park your truck in your driveway, what do your docs state on parking trucks? Is there another area for you to park (garage, out of sight?) and you are not doing that?
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GloriaM
(North Carolina)
Posts:778
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| 04/02/2008 3:03 PM |
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BobT2:
Depending on the type of meeting the open forum is really not the time to speak about your individual letters or fines. I would suggest that you request a meeting with the board to discuss this but not in an open forum setting.
Many Owners will say to management or the board I never received a letter but it is our policy to send several letters with the Articles and Section being violated giving an amount of time to correct such violation. Upon the expiring time-line, a hearing is then scheduled and then a decision letter is sent to the Owner with fines or not depending on how the board voted. Whether the Owner shows to the hearing does not negate the board rendering a decision.
Therefore, I would ask to see the notices sent, see if you were afforded a hearing and if fines were assessed in accordance with your state laws. |
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Dr. Gloria J. Martinez, CFO
Official HOATalk.com Sponsor
Author of "A Guide to Community Living"
Faith Management Services, LLC (North Carolina)
(704) 799-3791
www.FaithManagementServices.com
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 3:10 PM |
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Paul, I noticed that too: "I think I know that they want me to move my truck from my driveway but the ccr's or rules dont forbid parking in my driveway. As a matter of fact everyone parks their truck/car in their driveway."
You have different comments here.
1) Your CC&Rs or rules don't forbid parking in your driveway.
Don't "forbid" what? Trucks in general? Cars in general? Do your documents address/mention trucks at all? Or commercial vehicles? And are you thinking that they are defining your "truck" one way, yet you might be defining it another? Is that why you think they MIGHT be addressing your truck?
And 2) You state that "everyone" parks their truck/car in their driveway.
BUT, are their trucks and/or cars the same type/class as yours is? and if they are, and they are still not technically allowed by the CC&Rs or rules (depending on how differently you and they and the board might be defining "trucks"), just because they park there doesn't mean they CAN (are allowed) and doesn't mean maybe they haven't been getting fines, too.
I'm just curious as you are, I'm sure, exactly what it is they are fining you for! That has to be frustrating.
(by the way, we have a guy in our association who owns a white pickup truck. Pickup trucks, per se, are not addressed in our documents. Commercial vehicles, however, are. To park a commercial vehicle on the lot, it must be parked in the garage.
For all practical purposes, his white pickup truck might not appear to be a "commercial vehicle," except that it has the signage and logos of his electric painted on both sides. As long as the signage is exposed, per our documents, it is defined as a "commercial vehicle." When the signage is covered up, it is a white pickup truck. He tried to argue that it was not a commercial vehicle and, therefore, he could park it in his driveway without covering up the signage. But the court found otherwise, so in order to comply with our deed restrictions, if he wants to park it in his driveway, he must cover up the commercial signage. He defined his vehicle one way, the board defined it another. He didn't think he was in violation, and, as he found out the hard way, it was.)
To repeat, I'm still dying to know what infraction they are fining you for and it's just crazy to me that they don't identify it on any of the documents to you! One thing the guy in my little story can say, there was no question what the violation was, he just didn't agree that it was a violation.
Let us know whatever you find out. |
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BobT2
(California)
Posts:43
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| 04/02/2008 4:42 PM |
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I know it must be my truck. The board has tried to move it stating it is commercial, which it is. My concern is that who defines commercial? We said that it is the Vehicle Code because our CCR's don't define it but do refer to the CA Vehicle Code which does define it and if thats the case all trucks should park in the garage. The board says well yours is different. We clear that up and they board then says we are "operating a business from our home" We say incorrect, show them proof. We do some paperwork from our kitchen table. Thus they state that that is external evidence of a home based business. We disagree. Our CCR"S say we can have a home based business as long as no signage, customers, or deliveries. We have none of that.
I just want the section that they say we are violating us on. They have none that does not include their vehicles therefore they will not give us one. I am willing to remove my truck if they show me an actual section that says I cannot park their.
I found out today that things will work out in my favor as the members are planning a recall election.
Thanks for your help. I have read a ton of sights with the same type of problems. I think that many CCR's do not define the word "commercial" If that was done there would not be questions.
Our CCR's just say "boats, campers, commercial vehicles shall be parked behind the fence or in garage." Does the baord get to decide what commercial is only to have the next board define it another way? I will never move into a HOA again.
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DonnaS
(Tennessee)
Posts:2792
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| 04/02/2008 5:01 PM |
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Bob,
The definition of a commercial vehicle from our covs is--"Commercial vehicles,
vehicles with commercial writting on their sides, vehicles primarily used or designed for commercial purposes, no attached racks or boxes, and none in excess of 3/4 ton, shall be allowed to remain outside of the structure garages except allowing only for ingress or egress."
The arguement will always be what constitutes a commercial vehicle and it changes regularly as the truck styles change. Our association had to go to court on this very issue. Trucks now days cost so much money and they look nice but never the less, until the rules or covenants are changed, the truck must go into the garage or behind a fence.
As for operating a business from your home., the Board has absolutely no right in hell, to say what you do at your kitchen table unless your home business is creating excess street traffic and parking problems. That's really crossing the privacy line IMHO. I am a Board member but I would go to bat for you on this one. |
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 5:25 PM |
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Bob,
"I think that many CCR's do not define the word "commercial""
With all due respect, as I indicated in my previous post, we (the board) gets to define "commercial."
Here is the location in our CC&Rs that give us that "right."
"Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."
Chances are your documents give your board a similar "discretion."
In court, a judge upheld our determination, based in part on the above.
Regarding the "home business," I can't help you there, however, we have had 3 businesses shut down in the last 2 months.
One was a "mulch" company (the mulch truck was the dead giveaway, even though he received no "deliveries"), a daycare center (home-based, with fewer than 6 children, even though there is no signage, and we were unaware of it for 3 years. Once we did discover it, the owners opted to move rather than close it), and a catering business, again, while we were not aware of it initially, once we were, we had to move for it to cease, and it did. She now operates out of a local strip mall.
On the other hand, there is a difference between someone who does paperwork at home, or who is a freelancer, for example, and someone who is operating a business out of their home.
Your truck would be a violation in our HOA, and, as history would reveal, our enforcing the restriction against you would hold up in court. You have commercial signage on it, it is a commercial vehicle, it has to go in the garage or off site. It doesn't have to be *defined* in the CC&R, as long as the board makes a consistent and documented determination.
Not sure about the other, the alleged home business, though, without more information.
But one thing is clear, you have clearly evolved in my view on this thread from the position of an "innocent" homeowner being put-upon by a mean nasty board, to someone who obviously is knowingly violating at least one restriction and forcing the board to be consistent in their enforcement of the government documents. From what I can tell, the fines appear to be valid, at least as far as the commercial vehicle goes.
The fact that they park *trucks* does not support your comment or contention that they are breaking the rules, too, in and of itself, unless their trucks also have commercial signage on them, which you seem to indicate they do not.
So. Anyway. I wish you luck on the home business thing, but you need to stop violating the commercial vehicle restriction. Those fines are going to get pretty expensive.
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BrianB
(California)
Posts:1732
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| 04/02/2008 5:27 PM |
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bob, we simply defined a commercial vehicle as any vehicle licensed by the state as a commercial vehicle. you got commercial plates, you are a commercial vehicle. If you don't, you aren't. We had no definition, so that's what we fell back on.
as for the home based business, while i agree with Mary emphatically, i still must nitpick: If the rule is "no home based businesses" when you bought the home, why is it okay to have the attitude of "it's my house, stay out of my business"? You knew the rule when you bought, right? Why is it no HOA's business what i do on my kitchen table with a ledger, but it IS okay for them to regulate how many birds I can own, fish I can have in an aquarium, or dogs/cats I can have in my home? Why is one rule a violation of my privacy and homeowner's rights, and the other not?
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 5:31 PM |
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By the way, I'm more than a little annoyed that you tried to lie to us, or at least present a bogus story at the beginning.
Your initial post was all over the place about how you have no idea, no one has ever said anything to you -- you never got any communication about what you are doing wrong -- how do you find out what the fines are for? Do you just ask in the meeting, etc etc etc.
"What if they never answer me can they keep the monthly fines going without an explanation? "
And then you point blank make it clear that there has been an on-going dialog about your commercial vehicle, that they say it is, and you say it isn't.
That's pretty clear to me that you knew exactly what the fines were for.
Just because you don't agree with their interpretation of your vehicle, you can't sit there and then try to tell us you have no idea why they are fining you.
Thanks for finally coming clean, though.
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BobT2
(California)
Posts:43
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| 04/02/2008 6:46 PM |
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MicheleD
Wow you must be a board member!!! As I am here to hear other experiences and get other opinions. I don't need to "come clean" as you state.
I only have asked for the actual CCR or Rule that we have violated. I have never been given one. I get a monthly statement that says "violation $100.00"
As to other questions I respond
Many trucks have signage. Some have fuel tanks in the bed of them that they take to job sites and fuel their tractors. That one happens to be a board member.
Commercial is not defined and I do not agree that the board gets to decide what it means. Our CCR's say that "All State Vehicle Codes apply" The CVC states that all pickup trucks are commercial. For all of those that live in CA. and have any size of a pickup, (and many SUV's) please go read your registration and it will say commercial. I have a small Toyota and a larger "Mid size" truck. They are both commercial. |
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BobT2
(California)
Posts:43
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| 04/02/2008 7:11 PM |
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MicheleD
Our CCR's also state that "CCR must be enforced equally" mine are not! |
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 7:14 PM |
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You may not "agree" that the "board gets to decide," but our CC&Rs are very clear that the board does get final say, please read the above CC&R regarding that.
Most likely your CC&Rs have something similar. I would be surprised if it did not.
However, whether you "agree" or not is moot; a JUDGE agreed that our board "gets to decide" what defines a "commercial vehicle" for our HOA.
Yes, all local and state definitions apply as well. That is one of those "it goes without saying," since we cannot override a state regulation, however, we can, and in some cases, do have CC&Rs that are more strict.
And a judge has upheld us in every case that has been challenged.
And you certainly are entitled to know what you are violating, however, you don't get to pick and choose what you will accept as "legitimate" if the CC&Rs give your board the authority to do so.
And yes, this is a board for HOA leadership or people associated with HOA leadership.
How else do you think I knew enough to ask the right questions to get you to tell us the complete truth and not continue to string us along like you were some sort of wronged resident who is the victim of a renegade board that is trying arbitrarily to mess with you.
You were not honest with us to begin with, yet you shake your finger (figuratively) at me?!
The fact is, your board has a fiduciary duty to maintain the integrity of their documents.
They are clearly doing that in your case. If you don't like that they are doing it, you can certainly challenge them. However, don't try to paint yourself as some arbitrary victim in the course of it.
Admit that you are challenging them. Be up front with us from the beginning and you will get a much more pleasant series of advice.
Yank us around and, well, you get what you pay for.
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 7:23 PM |
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Posted By BobT2 on 04/02/2008 7:11 PM
MicheleD
Our CCR's also state that "CCR must be enforced equally" mine are not!
Then challenge them in a legal and professional manner on it. Don't play games with them (or us).
If you feel they have not properly "defined" commercial vehicle, and you feel that such a definition will include their vehicles as well, then you are certainly free to take it to a judge to make a final declaration.
If they have not done their homework and codified their definition of "commercial vehicle," then let the judge decide who has the stronger case.
However, be aware, you might think they are sloppy until you get into a court battle. Certainly there have been a resident or two in our own association who thought, after doing internet chat room searches and corner bar lawyering that they had us "backed into a corner" as well, only to find in court that all of our complaints have been thoroughly documented, all of our board decisions legal and codified, all of our notices within the structure of our documents.
We have not lost a challenge yet. Opposing lawyers love to go the "selective enforcement" route because in the past, oh, maybe 10 or 15 years ago, HOA boards were much more lax than many are today. Now opposing lawyers are finding that the boards of HOAs are much more organized, trained, and engaged. Yes, there are still horror stories out there, but if one thinks for a minute that ALL HOAs are run by mindless power hungry dictators, then so be it. These are the ones who are surprised when they do get into court or mediation that, in fact, there are plenty of HOA boards out there today who are doing it right.
Please, challenge if you think you have standing. It will be an education for you AND for your board if they have not been consistent and have not maintained their fiduciary duty.
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 7:31 PM |
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One more thing, even if the commercial signage alone did not classify it as a "commercial vehicle," the fact is has signage and is parked in the driveway also violates our signage CC&R that states only signs for the sale of the lot, advising of security service in the home, or welcome signs on the door are allowed. So your truck would violate two CC&Rs in our HOA.
Just sayin'.
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BrianB
(California)
Posts:1732
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| 04/02/2008 8:49 PM |
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Bob is correct, if you live in California, and your HOA bans commercial vehicles, AND you have a pick up truck, you are in trouble. Pick up trucks in Cali are commercial vehicles, as stupid a rule as that is.
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MicheleD
(Kentucky)
Posts:1675
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| 04/02/2008 9:20 PM |
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Brian, that may be the case, (and apparently is), but that's even greater reason to be legitimate when posting for advice and not yank us all around the corner and back. Look at all the time and energy, and good advice by people wanting to help, that was wasted because he was being duplicitous.
He posted claiming not to know why he was being fined. He claimed he had no indication, just these fines that started showing up.
People on the board try to give him guidance in how to find out, where to look, how not to do it in the public meeting, etc etc.
Then we find out he not only knows why he's getting the fines, but also that he admits he's actually IN violation, he just wants to make the board members clean up their own trucks out of the driveway.
Why not be up front with us to begin with?
His issue isn't that the HOA is not telling him what he's done that they are fining him for, but his issue is Selective Enforcement.
If the rules/laws in California say that pickup trucks are commercial vehicles and their CC&Rs prohibit commercial vehicles, then the CC&R on commercial vehicle restriction DOES, in fact, apply to him (unlike what he is claiming).
But it not only applies to him, it applies to everyone with a commercial vehicle/pickup truck, including the board members.
Okay, so why not just present that in the first place? Why isn't his question to us:
How do I go about the process of making my board enforce the commercial vehicle restriction evenly? Not, "what am I being fined for? Should I stand up at a meeting and ask in public? etc etc etc"
Board members SHOULD be held accountable to the CC&Rs JUST like non-board member residents.
AND, it's very likely his CC&Rs give the ability to enforce to ALL members of the association.
It may cost him a bit, but it would bring the board into alignment. He would need to file his own notice of enforcement against the board members who are in violation.
But my guess is he doesn't want the restriction to be enforced equitably, he wants it to not be enforced at all.
Because even if the board member is violating, that doesn't give him permission to violate without reprecussions as well.
He would have to see it to the end.
Either work to remove the restriction against commercial vehicles; work to amend the CC&R to NOT include pickup trucks; challenge the fines in court (although paying them as required until a finding on his behalf); or let it go and comply.
It just leaves a bad taste when someone doesn't start out the conversation on an honest footing.
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BrianB
(California)
Posts:1732
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| 04/02/2008 9:42 PM |
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i agree michelle... this has been a very around the bush way to get to his point, which could have been said in the first post.
i was just commenting that he was correct about commercial vehicles in Cali, something I found interesting (and silly), and that i suspected isn't well known. |
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BobT2
(California)
Posts:43
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| 04/03/2008 7:11 AM |
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MicheleD
I can assume that the board is bothered about my truck. I can only assume because there has been informal discussion on it before. You say I am not being honest. What good does that do me when I just am curious about the duty of the board to give a member the actual CCR or Rule reference they are being fined on?
So I ask this way. How does your board fine and send out letters? Do you give the members the code they have violated or just a monthly letter that says 'Violation $100.00 fine"
You mentioned you have been to court several times. How sad for your association. It does say something about you and your board. I can tell by the tone in all your response that you have big problems in you HOA. Maybe if you respond to your members in a nicer manner you would not be in court so much.
Also, If I am wasting so much of your valuable time, dont resond to my questions.
Take some Midol and have a nice day. |
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MicheleD
(Kentucky)
Posts:1675
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| 04/03/2008 8:19 AM |
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You only waste the time of people who were trying to help you when you weren't forthcoming with them. That's the pity.
I'm sure it does say something about my board and my HOA, regarding enforcing our documents.
It says that we are committed to the CC&Rs that we all agreed to when we moved into the subdivision.
It says that when people move into our community with the expectation that they are moving into a deed-restricted community that respects the rules and regulations, they can count on that happening.
And there's no need to *feel sorry* for our residents, they receive highly professional documents and notices. The first communication with any resident who may be in violation always assumes that any violation was inadvertent. It's a *reminder* notice, complete with the section of the CC&R that is in violation. In your case, you already KNOW what section it is, you just choose to not accept it.
But if by the 3rd notice a homeowner is still ignoring the communications or refusing to comply, we then step out of the picture and turn the situation over to the attorney.
In addition, when people feel strongly enough about challenging, then they need to be prepared to back up their position, and also be prepared to pay the costs. The challenges that the HOA has won have all had the fees and costs paid for by the homeowner who was unsuccessful in eroding our documents.
Remember, people generally receive the respect they give. My comments to you prior to discovering that your initial post was bogus were very respectful. I'm still respectful, but that doesn't mean my opinion of you is diminished because of the sneaky way you operate.
I do hope you get your problem resolved. However, I hope you get it resolved in such a way that is a benefit to your documents and does not erode or diminish them. Granted, your board, if not enforcing against the trucks properly is very much responsible for that as well. My hope would be that you are able to, as I mentioned earlier, either have the restriction against commercial vehicles removed (if the association membership wishes it to be) or have the restriction amended in such as way as to allow trucks, while still restricting signage on vehicles and other classes of commercial-type vehicles.
Something tells me, however, that it will be an ugly contest, especially when the key players involved are not willing to put the integrity of their deed restrictions above their own convenience.
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MicheleD
(Kentucky)
Posts:1675
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| 04/03/2008 8:27 AM |
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To clarify, our CC&Rs do not allow for a fine structure.
When compliance cannot be achieved through notifications, then our recourse is pretty clear. We can't send "warning letters" forever.
We have had no more than 5 cases that have resulted in drafting a legal complaint. Of those, only 3 have had to go to trial. Of those, the judge has upheld the board and the CC&Rs in each case.
Out of 300 residents over 10+ years, that's not a bad compliance rate.
In each case of the people who challenged, they all started with "you can't make me do anything. My builder told me those deed restrictions aren't enforceable and aren't worth the paper they're printed on."
In each case their attorney tried the selective enforcement defense.
I would hope that your board would realize the damage they are doing by not enforcing properly.
It would be a shame to have the other residents damaged by them not standing firm on their fiduciary duty.
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RobertR1
(South Carolina)
Posts:2072
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| 04/03/2008 1:56 PM |
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BobT,
I never said this on this Board before and I have posted well over 1000 times. Bob, you need to hang it up here, you are just taking up valuable time of a lot of people that know a lot more than you do. Go away Bob and come back when you can appreciaite what your are getting for nothing. You will pay a lot of cash to hear what these folks have told you, be a good idea to get your wallet out and learn the hard way. |
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BobT2
(California)
Posts:43
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| 04/03/2008 2:21 PM |
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Robert,
I just asked a question that noone will answer. Do you send out violation letters with an explanation of the section that the board thinks the member violated. All this hostility from all you board members is kind of what I am dealing with on my end with my board. Another board member that wants people to live as they live.
I get your message! I will go sit in the corner until the big bad board member says I can come out and play.
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DonnaS
(Tennessee)
Posts:2792
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| 04/03/2008 2:43 PM |
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Bob,
It seems that everyone needs a "TIME OUT". I will answer your question as best I can. Having been to court with my own association member for a similar violation, I stayed away because I get kinda steamed with this subject but here is my answer.
In Florida, someone in violation of a covenant or rule, gets a letter from the Property manager per a request from the Board with copy of what they are violating.
If the violation is not corrected or addressed,then 14 days later, a second letter is sent via registered mail with a copy of the violation. Also included is the schedule of the fining amount and another 14 days to correct or respond.
Then the next move comes from our Attorney. He sends the letter, with a time frame for correction along with the fining start date--and copy of what the violation is--and it is quoted from the documents..
If there is no resolution, then we start to rely on mediation or court, which hopefully never has to go that far.
Now in defense of my fellow posters, we get all kinds of people on this site, who want us to give them the magic wand, to get answers on how to avoid some of the really dumb, ignorant moves that they have pulled in the associations. Reading all of the covenants tells everyone the answers to their own questions but it is so much easier to ask us and hope that we give answers that they like. Most don't like what we tell them because they are definitely in violation of their documents and don't want to be told so. I am not scolding you, just telling you that we are really frustrated with the numbers of people who do this. |
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GlenL
(Ohio)
Posts:1362
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| 04/03/2008 2:46 PM |
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| I wasn't going to comment on this thread again because Michele did such a wonderful job of calling you on this. But the fact is that Stirling/Davis requires the HOA to have notified all H/O's of their fine schedule and to provide an opportunity for the party to contest the fine in executive session, so either the BOD failed to do this or you failed to contest it or you lost. |
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