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GeorgerwilliamsW
(Indiana)
Posts:767
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| 10/07/2008 8:53 AM |
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A couple of discussion threads have focused on the homeowners association board duty or right to take enforcement action for covenant or rule violations. This problem has been acknowledged on a national basis. It is likely that similar language will start to appear in state statutes over the next several years.
In July a draft Uniform Common Interest Ownership Bill of RightsThe executive board does not have a duty to take enforcement action if it determines that, under the facts and circumstances presented:(A) the association’s legal position does not justify taking any or further enforcement action;
(B) the covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with current law;
(C) although a violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending the association's resources; or
(D) it is not in the association's best interests to pursue an enforcement action.
(c) The executive board’s decision under subsection (b) not to pursue enforcement under one set of circumstances does not prevent the executive board from taking enforcement action under another set of circumstances, except the executive board may not be arbitrary or capricious in taking enforcement action.
I think it is useful to review the entire draft to get a sense of where the thinking of the legal profession is heading regarding homeowners associations.
http://www.law.upenn.edu/bll/archives/ulc/ucio_bor/2008am_approved.htm
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JohnK3
(Pennsylvania)
Posts:564
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| 10/07/2008 10:44 AM |
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George,
Slightly off-topic, but bear with me.
Here’s a couple of quotes from you just today:
>>>It demonstrates what can happen when there are inadequate, accessible checks and balances on the power of a board. It may also be the perfect example of the Abilene Paradox in action.
It also fits the axiom, all power corrupts . . .
We cannot, and should not, rely on an idealized concept of democracy to provide those checks and balances. It does not work in our constitutional form of government, nor does it work in a private, pseudo government by contract.
In their homes, most people seek respite, peace and quiet. That leads to a desire to be left alone, and a desire to not get involved in disputes or in regulating the behavior of others. That is one reason behind low turnouts in association elections and participation in the affairs of associations.
People want to avoid controversy. People will long suffer much indignity and abuse before acting.
It is also one reason why board participation tends to attract people who wish to control the lives of others. Not all board members are attracted for that reason. Yet, for some, board participation is an outlet for their need to control, regulate and dictate. And those people are able use low turnout and the lack of adequate checks and balances to enhance their power.<<<
*
>>>Well, Linda, you are the victim of a poorly written document. As I have observed a number of times in the past, covenant documents written by attorneys are some of the poorest work of the legal profession. It is an embarrassment to the legal profession, and to law schools that such documents exist.<<<
*
Let me stress your observation: “As I have observed a number of times in the past”.
From what I can gather, sometime in your past, you formally embraced “Law, the Jealous Mistress”, as our beloved Dean John Cribbet (perhaps you’re familiar with his tomes on Contracts?) put it at out First Year orientation.
I’ll also guess you know the term sidebar. How about you and me have one?
So, Counselor. I, too, drank from the cup. One JD, two state licenses, three federal ones. I’ve also done some writing. One published novel (hardcover USA, paperback Japan), film rights optioned by 20th C Fox (now in turnaround - that’s showbizspeak for shelved). Cool, huh? One wife, one dog, one house. One+ year as a contributor here at HOATalk. One+ year into my 3 year term on the Board of our HOA.
Here’s the deal. I don’t mind anti-Boardites and I don’t mind anti-Lawyerites. I don’t even mind anti-Authorites. I don’t take Internet Message Board posts personally, whether directed to me individually or to those I associate with (or am assumed to be associated with}. Though I can hold my own philosophizing, and have numerous world views, idiosyncratic views, thoughtful views and often stupid, self-serving views, here at HOATalk, I try (not always successfully) to limit my comments to what I believe are helpful, or if not helpful, at least informative ones, as is the case with most of the “regulars.” The HOA world, as we all know, or many of us know, can be tricky, threatening, disappointing and downright frustrating. Some of us Boardites, however, try our best to do a good job in the volunteered service of our Memberships with no expectations nor agendas save doing the right thing. And here at HOATalk, attempt to assist others in their varied travails, presenting those attempts without prejudice, pandering or pomposity.
That’s my story, and I’m stickin’ to it.
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MicheleD
(Kentucky)
Posts:1860
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| 10/07/2008 11:38 AM |
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Posted By GeorgerwilliamsW on 10/07/2008 8:53 AM
A couple of discussion threads have focused on the homeowners association board duty or right to take enforcement action for covenant or rule violations. This problem has been acknowledged on a national basis. It is likely that similar language will start to appear in state statutes over the next several years.
In July a draft Uniform Common Interest Ownership Bill of RightsThe executive board does not have a duty to take enforcement action if it determines that, under the facts and circumstances presented:(A) the association’s legal position does not justify taking any or further enforcement action;
(B) the covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with current law;
(C) although a violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending the association's resources; or
(D) it is not in the association's best interests to pursue an enforcement action.
(c) The executive board’s decision under subsection (b) not to pursue enforcement under one set of circumstances does not prevent the executive board from taking enforcement action under another set of circumstances, except the executive board may not be arbitrary or capricious in taking enforcement action.
I think it is useful to review the entire draft to get a sense of where the thinking of the legal profession is heading regarding homeowners associations.
http://www.law.upenn.edu/bll/archives/ulc/ucio_bor/2008am_approved.htm
I certainly hope this language does NOT make its way into "state's statutes" because they effective render consistent enforcement moot.
Just one place where this is an unacceptable document: The average board member is NOT an attorney and has not spent any time arguing in court what the term "material" is.
Even further, the documents that everyone agreed to on purchasing their homes does not give the "loophole," nor does it say, as long as the violation isn't objectionable to a "reasonable" person.
Such baloney.
It's like "line item veto" for every document and would be different on interpretation by every homeowner.
I'm sorry, but that entire concept of having the "legal" profession re-write the HOA "industry" has just one word from me: Fail.
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MicheleD
(Kentucky)
Posts:1860
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| 10/07/2008 11:39 AM |
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| Sorry about the bold italics, but there must have been a style code active from the quoted material that wasn't closed or turned off. |
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DonnaS
(Tennessee)
Posts:2946
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| 10/07/2008 11:55 AM |
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George,
WHO will determine this? "does not justify taking any or further enforcement action;
"although a violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending the association's resources; or
it is not in the association's best interests to pursue an enforcement action.
Then we have "SELECTIVE ENFORCEMENT" "b) not to pursue enforcement under one set of circumstances does not prevent the executive board from taking enforcement action under another set of circumstances, except the executive board may not be arbitrary or capricious in taking enforcement action.
Please tell me what action does a Board take when a lawyer member states that she is going to sue the BOD for NOT enforcing the covenants? I think that lawyers are the ones who screwed this up in the first place. They wrote the Covs, then they sue the HOA for trying to interpret what the heck they wrote in the first place. (venting here)
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GeorgerwilliamsW
(Indiana)
Posts:767
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| 10/07/2008 1:31 PM |
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"Please tell me what action does a Board take when a lawyer member states that she is going to sue the BOD for NOT enforcing the covenants? I think that lawyers are the ones who screwed this up in the first place. They wrote the Covs, then they sue the HOA for trying to interpret what the heck they wrote in the first place. (venting here)"
Could not agree more, Donna! Lawyers have done more to screw things up than anybody else. I am no fan of the legal profession. The 200 or so covenant documents I have read over the past eight months are among the worst output of the legal profession I have ever seen. As I have noted before, about half of each such document is legally unenforceable garbage. I would hazard a guess that most such documents are hack and paste jobs, prepared by a legal intern.
A board that has acted in a reasonable fashion, with thoughtful deliberation, and completes its due diligence with full documentation has little to be concerned about when it comes to threats of lawsuits. Lawyers are superb at intimidating people in order to get their way.
Reasonable decision making by a wise board trumps accusations of selective enforcement. It is up to the board itself to determine when it is appropriate to enforce a covenant or rule, and when it is not.
The board needs to consider and to balance (1) what action is in the best interest and well being of the community and (2) whether or not the infraction is sufficient to warrant enforcement action.
Let me give you an example close to home. Yesterday, I discovered a fall-blooming dandelion in my front lawn. The covenants are explicit, I must maintain a "weed free" yard. Therefore, I was in violation of the covenants. Now, should I receive the same "punishment" for one weed that my neighbor down the street received for his lawn full of weeds? The covenants are absolute, "weed free," so according to the covenants I should.
A reasonable, wise board of directors would say, No. Is that selective enforcement? From a legal, technical point of view it is. But is unthinking, absolute enforcement it fair or just or reasonable. Absolutely not.
Now another example. The covenants prohibit absolutely parking a recreational vehicle in the neighborhood for any length of time. Yet, there are many neighbors who own recreational vehicles (stored off site) who need park them in their driveways overnight in order to prepare for a weekend or longer trip.
So the board has wisely determined that neighbors may park a recreational vehicle in the neighborhood for no more that 36 hours in any seven day period. Are my rights being violated by this clear case of covenant violation and "selective enforcement", since I must look at those ungainly, out of place vehicles. Technically, yes.
(Now before anyone goes off the deep end here, our covenants were written in such a way that they may not be amended until after 2012. So amending the covenants is not a viable solution.)
Does the board have the authority to deviate from the covenants in such a manner? Legally, technically no. But is it a reasonable thing to do? Yes. Would strictly enforcing the covenant better serve the best interests of the neighborhood? No. Were a lawsuit filed, I doubt any judge would find that the board acted unreasonably and beyond its scope of authority.
We elect boards to use their reason, judgment and wisdom. They fail when they become slaves to strict interpretation of rules and regulations that ignore justice and reasonableness. They succeed when they do what is best for the neighborhood, using their wisdom and judgment. Sometimes that means strict enforcement; other times it may mean overlooking an infraction.
I come back to an earlier post on "Reasonableness":"A reasonable person must realize that complete emotional tranquility is seldom attainable, and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment. A reasonable person must expect to suffer and submit to some inconveniences and annoyances from the reasonable use of property by neighbors, particularly in the sometimes close living of a suburban residential neighborhood.
"[T]he resolution of the issue of a private nuisance involves the conflicting interests of landowners. 'The right of one to make such lawful use of his property as he may desire must be applied with due regard to the correlative right of the other to be protected in the reasonable enjoyment of his property.' Each case must be decided upon its own facts, ... '[E]very annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed ... but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others.'"
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DonnaS
(Tennessee)
Posts:2946
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| 10/07/2008 1:36 PM |
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Michelle,
Another vote from me---FAIL! |
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MaryA1
(Arizona)
Posts:2489
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| 10/07/2008 2:13 PM |
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George,
I wonder if the following two sections would be upheld in a court of law:
(B) the covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with current law;
(C) although a violation may exist or may have occurred, it is not of such a material nature as to be objectionable to a reasonable person or to justify expending the association's resources; or
Remember the AZ Gfeller case that I posted info on recently. The judge ruled the assn did have a duty to enforce the covenants -- "duty" was explicitly stated in the docs. Would this Bill of Rights overrule the covenants?
The Bill of Rights sounds good, but maybe too good to be true. I really think it would serve to justify an errant boards misguided thoughts on enforcement. Selective enforcement would run rampant in some assn's!!
Is this Bill of Rights to be made a part of UCIOA that some states have adopted? |
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GeorgerwilliamsW
(Indiana)
Posts:767
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| 10/07/2008 2:32 PM |
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Would the Bill of Rights overrule covenants? The answer is, Yes. What I quoted was just one part of a much larger document.
"SECTION 6. APPLICABILITY TO PRE-EXISTING COMMON INTEREST COMMUNITIES.
(a) This [act] applies to all common interest communities that contain 12 or more units that may be used for residential purposes created in this state before the effective date of this [act] but those sections apply only with respect to events and circumstances occurring after the effective date of this [act] and do not invalidate existing provisions of the declaration, bylaws, or plats or plans]of those common interest communities.
I am not endorsing this uniform act at all. I think has value, but it is up to individual state legislatures to decide what to do with it.
This Bill of Rights is essentially an addition to, or amendment of, the uniform act. Their has been so much opposition and dislike of the initial proposal, that the Commission chose to propose these changes.
Another section of this proposed uniform Bill of Rights limits foreclosure, to wit:SECTION 15. LIMITATIONS ON FORECLOSURE.
(a) Regardless of provisions in the declaration, an association may not commence an action to foreclose a lien on a unit under this section unless:
(1) the unit owner, at the time the action is commenced, owes a sum equal to at least Α] months of common expense assessments based on the periodic budget last adopted by the association pursuant to Section 20 and the unit owner has failed to accept or comply with a payment plan offered by the association; and
(2) the executive board votes to commence a foreclosure action specifically against that unit.
(b) Unless the parties otherwise agree, the association shall apply any sums paid by unit owners who are delinquent in paying assessments in the following order:
(1) unpaid assessments;
(2) late charges;
(3) attorneys fees and costs and other reasonable collection charges; and
(4) all other unpaid fees, charges, penalties, interest and late charges.
(c) If the only sums due with respect to a unit are fines and related sums imposed against the unit, a foreclosure action may not be commenced against the unit unless the association has a judgment against the unit owner with respect to the fines and related sums and has perfected a judgment lien against the unit under [insert reference to state statute on perfection of judgments]
(d) Every aspect of a foreclosure, sale or other disposition under this section including the method, advertising, time, place and terms, shall be commercially reasonable.
There are also sections dealing with U.S. flag display, political signs, electronic delivery of notices, adoption of budgets, removal of board members and officers among other things.
As to the Gfeller case, the duty was explicitly stated in the covenants. The issue in that case was resolving an apparent conflict in another section. The judge rightly held that the conflicting language was complementary, not contradictory to the explicitly stated duty. Should Arizona adopt this uniform bill of rights the Gfeller case would be moot. |
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MaryA1
(Arizona)
Posts:2489
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| 10/07/2008 2:37 PM |
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| AZ does not use the UCIOA and I can't see the legislature adopting their Bill of Rights. AARP came out with a bill of rights, I believe last year. Some HOA advocates wanted to have it written into law but that didn't get anywhere. I'm not a fan of legislating HOA's to death! |
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RobertZ1
(Michigan)
Posts:53
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| 10/07/2008 2:47 PM |
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Can we all remember that most HOA's and their rules (Charters/Covenents/Deed restrictions)were created for the purposes of a COMMON GOOD. We all, who live in a community, should have some basic and simple guidelines to have as a standard.
We as a civilization have always had RULES or Guidelines, dare I say LAWS. We all gain from that kind of normality. I am not as learned and educated as other posted members, but it seems pretty simple, without each other following some kind of rules this would be a very uncivilized world and society.
Thank you, thats my thoughts, and I always like to hear others! |
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GeorgerwilliamsW
(Indiana)
Posts:767
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| 10/07/2008 3:02 PM |
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Posted By MaryA1 on 10/07/2008 2:37 PM
AZ does not use the UCIOA and I can't see the legislature adopting their Bill of Rights. AARP came out with a bill of rights, I believe last year. Some HOA advocates wanted to have it written into law but that didn't get anywhere. I'm not a fan of legislating HOA's to death! I completely agree! The uniform act is not a good model at present. It tips the balance between individual property rights and the needs of the community toward the homeowners association. This bill of rights is an effort to correct it.
Arizona is wise, in my opinion, to go its own way to enact legislation that fits the needs of the state and the character of the people. |
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GeorgerwilliamsW
(Indiana)
Posts:767
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| 10/07/2008 3:26 PM |
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Posted By RobertZ1 on 10/07/2008 2:47 PM
Can we all remember that most HOA's and their rules (Charters/Covenents/Deed restrictions)were created for the purposes of a COMMON GOOD. We all, who live in a community, should have some basic and simple guidelines to have as a standard.
We as a civilization have always had RULES or Guidelines, dare I say LAWS. We all gain from that kind of normality. I am not as learned and educated as other posted members, but it seems pretty simple, without each other following some kind of rules this would be a very uncivilized world and society.
Thank you, thats my thoughts, and I always like to hear others! Under a utopian system, your argument would, in my mind, be right on target. But I don't think that most developers who subdivide land and establish protective covenants have the common good in mind.
Sadly, and without being disagreeable, I think there are two primary motivators behind restrictive covenants: (1) profits for developers and (2) alleviating the burden of providing some services by municipalities.
Many homeowners associations are created for planned unit developments, which means that instead of creating open spaces around each home, open spaces are consolidated and owned by the association.
For instance local development and zoning laws here require a newly subdivided lot to be no less than one-half acre, and homes no closer than 18 feet to each other. However, in a planned unit development, minimum lot size goes away, as long as certain density levels (so many homes per acre for the total development) are maintained. Free standing homes can be as close as six feet to each other in a homeowners association controlled planned unit development.
That means that the developer can maximize the number of homes built, and the city gets more park-like open space that it does not have to maintain. Developers can also provide for amenities that help to sell homes and maximize profits.
The problem with rules and laws is that they thwart justice. We have to have them, but justice demands that they be interpreted in light of the circumstances and what is in the best interests of the larger society. That is why we have courts.
Unfortunately, in homeowners associations, the board of directors makes the rules, interprets the rules, enforces the rules, prosecutes the offenders and carries out the punishment. There is no checks and balances, nor separation of powers.
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MicheleD
(Kentucky)
Posts:1860
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| 10/07/2008 4:15 PM |
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Posted By GeorgerwilliamsW on 10/07/2008 3:26 PM
Unfortunately, in homeowners associations, the board of directors makes the rules, interprets the rules, enforces the rules, prosecutes the offenders and carries out the punishment. There is no checks and balances, nor separation of powers.
And this is where you and I just plain disagree.
The governing documents themselves provide the guidance on the checks and balances.
And they are the very same "checks and balances" that other corporations have.
When shareholders do not have faith that the board is working with their best interests in mind, they have the ability to replace the board.
If the board is a rogue board, and it doesn't recognize the homeowners' ability to do that, then the homeowners can take it to court. It works both ways.
Is it harder? Sure, but it's available to them. |
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MaryA1
(Arizona)
Posts:2489
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| 10/08/2008 9:37 AM |
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Michele,
I think what George is really talking about is the absence of due process. When the judge, jury and executioner are all the same person (the HOA BOD), there is no due process. HOAs are not like other corps -- a corp that I own stock in does not have the power to levy fines on me if I don't buy the number of shares in their corp that they think I should be buying!! |
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SheliaH
(Indiana)
Posts:92
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| 10/08/2008 9:51 AM |
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MichelleD wrote:
And this is where you and I just plain disagree.
The governing documents themselves provide the guidance on the checks and balances.
And they are the very same "checks and balances" that other corporations have.
When shareholders do not have faith that the board is working with their best interests in mind, they have the ability to replace the board.
If the board is a rogue board, and it doesn't recognize the homeowners' ability to do that, then the homeowners can take it to court. It works both ways.
Is it harder? Sure, but it's available to them.
I absolutely agree with this! I know power hungry board members exist, as well as do nothing boards, but for each one of those, I like to believe that there are at least 10 others where the members are trying to do the right thing by their neighbors.
For my part, I'm not interested in controlling other people's lives as a board member (my OWN life is trying enough). What I would like is for people to at least take some interest in what the board is doing and why, except for yelling every time there's a fee increase. I would like homeowners to READ the governing documents before yelling about "it's my house and I'll do whatever I want" - despite signing documents stating they understood they were moving into a HOA and would comply with the rules.
If people want to be left alone, as George says, they should at least vote for people who will do the right thing and keep an eye on them. If they don't like what the board is doing, go to a meeting and demand answers (and take the neighbors who feel the same way). If homeonwers don't vote and don't monitor, they're basically saying they don't mind having a power hungry board. Either change it or quit bitchin.
There is no point in having rules if there aren't consequences for not following them. Certainly, board members need to remember to be fair in all dealings and if they fail to do so, they should be held accountable. I'm not going to nitpick over the homeowner across from me whose been hanging laundry on her fence to dry (no, it doesn't look attractive at all, but she gets it off at the end of the day and with today's energy prices, I understand where she's coming from).
No, I worry more about the satellite TV dish on the roof despite being told (twice) you can't put it in the comom area (the roof). And now, we have to spend money on attorneys fees to send demand letters and maybe get an injunction to get rid of the bloody thing. If we do nothing, it would be our tough luck that a strong wind comes along and damages the roof we installed TWO YEARS ago and have to pay to fix it (all because this moron wanted 15 channels of HBO, the NFL and NBA networks - all for $24.99)
Yet the board risks being called power hungry because we dare to enforce the rules???
I maintain people who choose to live in HOAs had plenty of time to find out what they were getting into BEFORE they bought the property. If they didn't get the documents to review in advance, they shouldn't have moved there. If they read them and didn't understand something, they should have asked - and kept asking until they understood what was expected. If they didn't like what they heard, for whatever reason, they shouldn't have brought the property. If they didn't talk to a few neighbors and get the 411 on what was really going on or attend a board meeting to meet the members and ask questions, whose fault is that?
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MaryA1
(Arizona)
Posts:2489
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| 10/08/2008 9:55 AM |
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| This has nothing to do with who is serving on the board. It has to do with how HOAs are set up. There is no due process and that is what I believe George is talking about. When the board makes the rules, enforces the rules, hears the appeals,and metes out the punishment, due process flies out the window. |
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JohnK3
(Pennsylvania)
Posts:564
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| 10/08/2008 10:26 AM |
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Posted By MaryA1 on 10/08/2008 9:55 AM
This has nothing to do with who is serving on the board. It has to do with how HOAs are set up. There is no due process and that is what I believe George is talking about. When the board makes the rules, enforces the rules, hears the appeals,and metes out the punishment, due process flies out the window.
Mary,
If EVERYBODY receives the same treatment, under the same rules, I'd say that is the heart of due process. Adding a bunch of new hurdles just adds a bunch of new hurdles.
Selective enforcement, granting favors, grinding axes, whatever, is a separate issue. And that does have to do with who the Board is.
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KimM8
(California)
Posts:75
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| 10/08/2008 11:32 AM |
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I maintain people who choose to live in HOAs had plenty of time to find out what they were getting into BEFORE they bought the property. If they didn't get the documents to review in advance, they shouldn't have moved there. If they read them and didn't understand something, they should have asked - and kept asking until they understood what was expected.
---->>>>>
Sure people could do all of this, but it doesn't matter if you have a board who does all of the things John said. |
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SusanW1
(Michigan)
Posts:2316
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| 10/08/2008 11:57 AM |
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One dandilion in the yard is not going to lower my property values or offend me or challenge the well-being of the association.
But what does a yard full of dandilions do?
And, if let go, will the dandilions seeds spread to other yards? Then what?
The board is often asked to make subjective decisions on objective rules.
That's why we hope there are reasonable people serving on boards.
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MaryA1
(Arizona)
Posts:2489
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| 10/08/2008 4:21 PM |
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Posted By JohnK3 on 10/08/2008 10:26 AM Posted By MaryA1 on 10/08/2008 9:55 AM
This has nothing to do with who is serving on the board. It has to do with how HOAs are set up. There is no due process and that is what I believe George is talking about. When the board makes the rules, enforces the rules, hears the appeals,and metes out the punishment, due process flies out the window. Mary, If EVERYBODY receives the same treatment, under the same rules, I'd say that is the heart of due process. Adding a bunch of new hurdles just adds a bunch of new hurdles. Selective enforcement, granting favors, grinding axes, whatever, is a separate issue. And that does have to do with who the Board is.
John,
Everyone being treated the same doesn't enter into it either. They might all be treated badly!!! There is no due process when the board is the judge, jury and executioner.
due process of law
n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.
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GlenL
(Ohio)
Posts:1466
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| 10/08/2008 10:16 PM |
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This debate reminds me of the old ads for Certs - "It's a breath mint. It's a candy mint! It's two, two, two mints in one."
An HOA is not a government, pseudo or otherwise, it's a business. Yes in some cases the HOA may fine someone, may lien someone or even foreclose on someone. Except for the fines they must go to an actual government entity to do so. But fines most can do on their own acting as judge, jury and executioner as many have pointed out. But what happens when you run afoul of any other business?
What happens when someone is late with a mortgage, utility or credit card payment; even if it's through no fault of their own, they mailed it on time and it got lost or delayed? The business assesses them a fine which they must now pay. That business just acted as judge, jury and executioner; it cited them for being late and fined them. Now say you are this hapless bill payer, you get on the phone and start protesting the fine. As you work your way up the corporate food chain in an effort to resolve the matter, the same people who decided you were late in the first place are in most cases the same people that decide whether or not you must pay the fine.
Now say you have exhausted all efforts to get this fine removed; you can:
A. Pay it.
B. Ignore it and keep paying what you think you owe; not realizing that the company is taking the amount of the fine out of your payment, making subsequent payments delinquent and thereby digging a real hole for yourself.
C. Take them to court or arbitration to resolve the matter.
Well, guess what? Homeowner's who are fined by their HOA's have the same remedies available to themselves. If they think a fine is wrong and that they didn't get a fair hearing can protest the fine in court or arbitration.
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MicheleD
(Kentucky)
Posts:1860
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| 10/09/2008 8:18 AM |
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Posted By GlenL on 10/08/2008 10:16 PM
This debate reminds me of the old ads for Certs - "It's a breath mint. It's a candy mint! It's two, two, two mints in one."
An HOA is not a government, pseudo or otherwise, it's a business. Yes in some cases the HOA may fine someone, may lien someone or even foreclose on someone. Except for the fines they must go to an actual government entity to do so. But fines most can do on their own acting as judge, jury and executioner as many have pointed out. But what happens when you run afoul of any other business?
What happens when someone is late with a mortgage, utility or credit card payment; even if it's through no fault of their own, they mailed it on time and it got lost or delayed? The business assesses them a fine which they must now pay. That business just acted as judge, jury and executioner; it cited them for being late and fined them. Now say you are this hapless bill payer, you get on the phone and start protesting the fine. As you work your way up the corporate food chain in an effort to resolve the matter, the same people who decided you were late in the first place are in most cases the same people that decide whether or not you must pay the fine.
Now say you have exhausted all efforts to get this fine removed; you can:
A. Pay it.
B. Ignore it and keep paying what you think you owe; not realizing that the company is taking the amount of the fine out of your payment, making subsequent payments delinquent and thereby digging a real hole for yourself.
C. Take them to court or arbitration to resolve the matter.
Well, guess what? Homeowner's who are fined by their HOA's have the same remedies available to themselves. If they think a fine is wrong and that they didn't get a fair hearing can protest the fine in court or arbitration.
Glen, thank you for your comments.
These are exactly the point.
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