Legal action against homeowner

I am a Board member of a small community (less than 60 homes) in Maryland that has a familiar problem – a ‘boilerplate’ Covenants and Restrictions with no ability to fine, and a perennial offender - yearly being sent notices to remove his boat and trailer. However, this year, he has totally ignored our notices.

I would like to know how to proceed legally. Specifically, what sort of legal means or law do CCRs have in which we force him to move his boat, or have it towed (I assume that the CCRs in all states must be legally binding)? If so, and we win the case and/or injunction, is the homeowner obligated to pay anything beyond court costs, or can we attempt to legally sue to have him pay for our legal fees? Do we even need a lawyer if the violation is so obvious?

As you can probably guess, we wish to avoid lawyer’s fees if possible. We have already raised our HOA fees the past couple of years, and we do not wish to do so this next year.

And yes, we have attempted to change the C&R to include fines, but did not have enough votes to pass it.

Steve:
Your documents probably have a section that says the association can correct violations and bill the homeowner for the coat. Start sending letters quoting that section and tell him you'll have his boat and trailer towed. I'm not recommending actually doing this without the advice of an attorney but the threat may be enough.
Jeanne

A HOA should never sue an individual homeowner. It never really pays off. The HOA may win a judgement in court but that doesn't equal money paid. An owner can simply sell their property and walk away without paying the judgement for years or ever. That's because board's change every year and open judgements get forgotten about after about the 3rd board change. The judgement has to be renewed at certain time frames to keep it active to pursue.

What a HOA can do instead is send out a letter for the violation if it is in the CC&R's. The letter should give a time frame action and the violation it violates in the CC&R's. If the owner doesn't take action, the the HOA will take the action and make the owner pay for the costs of removal. That would include legal fees if necessary. If the owner doesn't pay, then a LIEN can be placed for the costs. A lien is also a JUDGEMENT similar to what a lawsuit would result in but it doesn't allow the owner to sell their property until it is paid off. This pretty much guarantees payment eventually...

Now the HOA can't foreclose on fines. They can ONLY foreclose for unpaid assessements including special ones. Foreclosures are a whole different subject but wanted to mention that that is another legal avenue allowed to be pursued by a HOA.

Your best bet is just to send out a letter detailing the violation, where it violates in the rules, how much the HOA will charge someone else to remove it (50 dollars to someone with a truck will do), and that if they don't pay then a lien may be placed upon them. That should be enough to stir up the anger pot...Good luck!

Steve,

Not sure about your covenants but may be you can give the owner a notice you will consider towing the boat away at his expense. On the other hand, towing a vehicle from someone’s private property (assuming it is) may be a little problematic because MD law may prohibit it? So, be cautious here.

Yes, CRRs are legally binding but obviously not to him. In Florida, any disputes between an association and the member can be resolved by a ‘presuit mediation proceeding’ which requires filing a petition for arbitration (cost is about $200). Perhaps you could check into something like that?

One danger of sweeping generalizations and blanket statements of "fact" based solely on one's own experience is that, when found to be untrue in a particular situation, they tend to damage the credibility of the person making the statement.

John06

You tried................

Seems not to have worked.

Rathering than considering your opinion she decided to defend her actions.

Some people are just difficult or perhaps impossible to get through to.

IMO this is NOT a forum for legal advice. Posters should not seek legal advice nor should those responding offer it.

Steve,

Towing any vehicle (or a boat on a trailer) requires an Association to comply with local towing laws. This typically requires specific notices and/or signage. If the vehicle is on the members personal property (driveway, backyard, etc.) you might have additional problems as you could be in violation of trespassing laws if you enter his property.

Typically, fining is the preferred method of enforcement unless there is a safety issue. Typically, prior to fining a hearing is held as this protects the individuals due process rights.

Have you held a hearing on the issue (sending a hearing notice to the owner)?

If not, you should do this first.

Tim

With all due respect, Steve, why is this guy with a boat such a thorn in your side? Is he really worth all the agonizing? If it really and truly is a problem for all the other members of your association then spend some of their money on a consultation with an attorney.

This is why people hate HOA's. A few control freaks want to mind everybody else's business while refusing to seek legal guidance. Man, I sure wish a boat in my neighbor's driveway was my biggest problem!

You might consider what we've started doing with our chronic violators who seem to think the violation letters sent to them don't matter: refer to attorney who sends a CC&R violation letter and if that doesn't work, file with the court for an order of specific performance.

Tim,

Thank you very much for your valuable input. Your answers/suggestions are along the lines of what I was hoping to read. Doubly thanks for your 'IMO' of the process, also needed; however, to clarify - you said our Board would have to create the methodology of enforcement - documented, of course. But the Resolution - may the Board be able to do that as well? Or is the Resolution, and the creation of the methodology part of one process? I guess more to the point, I can assume that the Board, through its mandate of enforcement in the Declaration (however vague), may enact a fining system without a actual change or amendment to existing bylaws - as long as every homeowners rights are protected, and our methodology is documented?

Thanks

Without reading your specific ByLaws page for page, most HOAs have a method to create amedments to the bylaws without everyone voting on them. However, it would be best to coomunicate and educate your Association members the need for this clause and this specific action to prevent future developements from occurring.
I think Tim is most on track with his reasoning and logic.
The problem will lie in a grandfather clause. A specific set of wording needs to be in place so you can apply a new CC&R violoation to past issues that are still in existance after passing the new provisions.
A BODs need some lead way in making decisions and acting upon them. However, that being said, there also has to be a mechanism for the association as a whole to undo some of these decisions. What I would suggest in this issue, is have the BODs amend the ByLaws and make the necessary adjustments and then place the association on notice that if there are no objections at the next meeting ( or special meeting) that these amendments will take affect and cite the date of these meetings and effects.
Suggest wording to the effect that these amendments can be revisited in the future for discussions by____ (some method the association members would like, as in a written notice to the BODs for discussion)

Just my thoughts.

Steve,

You pretty much understand it. A Resolution is the documentation of a board decision or adoption of a policy. The Board would make a resolution which cites the authority to create the policy and then the policy itself.

Obviously, the board cannot adopt rules and regulations, or pass decisions that conflict with or violate provisions and requirements in the bylaws, the declaration, or a higher level of authority.

We always publish the proposed resolution and hold a meeting for community feedback. Based on the feedback, the resolution may or may not be modified prior to adoption by the Board. By allowing feedback, the membership is made aware that this is happening and the Board can see where the problem areas might be. Depending on the specific resolution, you may also want advice from the Associations Attorney. However, that isn't necessary on all Resolutions.

Our Associations first resolution was to define the procedures to make resolutions and establish the "Book of Resolutions".

Here is a brief example of an opening for resolutions:

WHEREAS, Article xxx, Section x of the [document or State law] states that "abc" and

Add as many WHEREAS, as needed.

WHEREAS, The Board of Directors desires to establish xxxxxxx

NOW, THEREFORE, BE IT RESOLVED THAT the following shall be adopted and known as TITLE

Hope this helps,

Tim

Dan,

A few months ago I had related an issue of enforcement of violations because of a chronic violator who completely ignored our letters. (http://www.hoatalk.com/Forum/tabid/55/forumid/1/page/26/view/Topics/Default.aspx). I had since gone to your web site, used the Resolution as a template, applying minor changes, but was ready to submit it to an agreeable board....when I dug up this language in the Assessments section of our bylaws: "Additional Assessments. Additional assessments may be fixed against any Lot ONLY AS PROVIDED FOR IN THIS DECLARATION. (caps mine - no italics). Any such assessments shall be due as provided by the Board of Directors in making any such assessment."

Since it seems to me this would almost negate the ability to treat fines as collectable, I think this would ultimately prevent me from using the language in your own Resolution:

These fines shall be considered Assessments according to Article IV of the Declaration, and shall become a lien against any the violating member’s property. By imposing fines, the Board does not waive any remedy or rights it may have under the Declarations or by applicable law. Costs and attorney's fees incurred in enforcing suspensions described in Section 4(a) or collecting fines described in Section 4(b) shall be considered as Assessments according to Article IV of the Declaration, and shall become a lien against any the violating member’s property.

Do you think, given that Article, that we could still possibly use this paragraph in our resolution? We have no specific 'penalties' language - in fact, I'm pretty much hanging our hat on these few phrases:
(1) the third Whereas paragraph - " [formation] of Deer Point Howmeowners Associatino, Inc. to be formed in order to perform certain functions...including, but not limited to, THE ENFORCEMENT OF THE COVENANTS, CONDITIONS, AND RESTRICTIONS HERIN SET FORTH (caps mine)...."
(2) 2.10 Implied Rights. The Association may exercise any other right or privilege given to it expresly by this Declaration....and every other right or privilege REASONABLY IMPLIED (caps mine) from the existence of any right or privilege given to it herin or REASONABLY NECESSARY TO EFFECTUATE ANY SUCH RIGHT OR PRIVILEGE (caps mine).
and (3)Enforcement. Declarant, the Association or any Owner shall have the right to enforce by any proceeding at law or in equity, all restrictions,....liens and charges now or hereafter imposed by the provisions of this Declaration.....

The latter 2 being of a lesser import than the first (in my opinion). You think we can go through with this, given the language in 5.9, and lacking the specific 'penalties' phrase? Or perhaps I can bring this issue up again in its entirety on this forum again for some more specific opinions? Or perhaps just elimate the "These fines shall be considered Assessments according to Article V of the Declaration" sections that I copied from your Resolution.

You said I may contact you. Hope its not too much, but I thought I'd give you a few more specifics - and we really could use the help. Like I said, we had tried amending the bylaws, and though a majority approved, not enough of the homeowners voted to produce an adequate forum.

Thanks again for the time,

SteveB14