MariB
(South Carolina)
Posts:33
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| 10/27/2011 6:42 PM |
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I have been fighting with HOA, the management office and zoning about my neighbor across the street. He is running his landscaping business from his home, i.e. truck traffic coming and going throughout the day, storing supplies at his house, paying employees out in the yard, etc. It's a nuisance to our cul-de-sac. I've been trying to get someone to do something for about a year now.
Finally I had called zoning because the HOA was not able to enforce their rules. Why I pay HOA fees, I don't know...guess it for the pool and lights but don't know why have rules when they do us no good if can't enforce but whatever.
My neighbor decides he wants a jury trial. Jury trial has finally been set for the end of this month. I can not get a neighbor to testify in court. They are either afraid of this guy or don't want to face him in court. They complain about him anonymously but that's as far as they are willing to go. So it's just me against him.
The HOA did send him letters to cease and desist running his business from home but he tossed them out and laughed and says this is America and he can do what he wants.
Since I can not get anyone to help back me up I asked the county attorney if it would help the case if an HOA board member came to court. He said yes. I asked the HOA president but she was going on vacation that day. She said another member had a doctor's appt., another member was taking care of her sick mom, etc. In other words there was an excuse for each member or either they just didn't want to go.
I'm disappointed in the lack of help here from the HOA. Am I having too high expectations for my HOA Board members? I know they don't get paid but why volunteer if your heart isn't in it?
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LarryB13
(Arizona)
Posts:425
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| 10/27/2011 7:47 PM |
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| These witnesses may not be necessary to the case. Certainly the police or a zoning inspector has already conducted an investigation and will likely be subpoenaed to testify at trial. The fact that none of your neighbors will show up to testify for you also means that they won't be there to testify for the guy running the landscape business from his home. If there was a need for the board members or neighbors to testify, the prosecutor would have subpoenaed them and deposed them before trial. Relax and let the prosecutor run his own case. |
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JeffR7
(California)
Posts:245
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| 10/27/2011 10:46 PM |
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| what do your CC&Rs say about running a home business? Is it prohibited? What is the wording? Many cities and towns grant owners rights to run home businesses and it wouldn't be in violation of any zoning laws. I don't know about your specific locality. |
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LarryB13
(Arizona)
Posts:425
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| 10/28/2011 1:18 AM |
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Jeff:
The CC&R's are irrelevant as this matter is being prosecuted as a zoning violation by the county attorney. This would also imply that the city and/or county is not granting the neighbor a permit to operate his landscaping business from his home. |
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TimB4
(Virginia)
Posts:3801
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| 10/28/2011 1:53 AM |
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For those who may not recall, here are links to the background on this issue:
a href="http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/113350/Default.aspx">HOATalk Thread started in May 2011 titled "Need advice please"
a href="http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/113503/Default.aspx">HOATalk Thread started in May 2011 titled "Are there some HOAs that can't enforce their CCRs?"
Tim
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TimB4
(Virginia)
Posts:3801
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MariB
(South Carolina)
Posts:33
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| 10/28/2011 5:19 AM |
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Thanks Tim for finding those links. I wasn't able to find the or I would have posted in those.
The thing is I asked the zoning attorney if I was able to bring an HOA member, would it help my case. He said yes it would. If it wouldn't help my case I would not ask them. I told HOA president that the attorney said if I had a rep from the board, it would help my case.
Again everyone is too 'busy' to go and appear. This case has been going on a while and they just don't want to make time to help with this. I would think it would be encouraged for one of them to go since they are the board and this is something happening in the neighborhood and other neighbors are affected.
Personally, I'm disappointed. |
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SusanW1
(Michigan)
Posts:5202
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| 10/28/2011 5:26 AM |
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This is not "your" case - it is the zoning board's case, which should have turned it over to either the police department or other enforcement agency. But how much do yu want to bet that this is not a priority case for either the zoning board or the police.
You have done everything that you possibley can. Find out how other HOAs in your community are enforcing their CCRs when it comes down to the end. As always, endorcement is the key issue, here.
(But I do know of one HOA who towed the work truck of a landscaper who parked a huge truck on the driveway after being warned)
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SusanW1
(Michigan)
Posts:5202
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| 10/28/2011 5:26 AM |
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This is not "your" case - it is the zoning board's case, which should have turned it over to either the police department or other enforcement agency. But how much do yu want to bet that this is not a priority case for either the zoning board or the police.
You have done everything that you possibley can. Find out how other HOAs in your community are enforcing their CCRs when it comes down to the end. As always, endorcement is the key issue, here.
(But I do know of one HOA who towed the work truck of a landscaper who parked a huge truck on the driveway after being warned)
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MariB
(South Carolina)
Posts:33
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| 10/28/2011 5:35 AM |
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This is a case I started, I have taken each and every picture and video as I was told to take. These pics and video is the only evidence except the fact that the zoning guy approached him once and sent certified letters that went ignored.
I feel this is 'my' case since I am the one that had the courage to actually do something about it whereas everyone else on the street is too scared of this guy.
I go through zoning so the attorney is paid for. It may not be 'my' case but it's one I'm very invested in. Sorry if I used the wrong choice of words but my concern is the HOA and their excuses to again not help. It is a case of Zoning vs. my neighbor buy I am the only witness.
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 5:39 AM |
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I agree this isn't your case and to try to bring your HOA into it is a bit of a stretch. The HOA is made up of YOU and YOUR neighbors. It isn't a "They or Them" entity. So when you say the HOA isn't doing anyting AND your neighbors aren't willing to either, then you got your response from your HOA. You can't enforce the rules of your HOA as an individual member. It has to be as a united front and done through the board who was elected to represent ALL the members.
As I see it, the end ruling of this case is most likely NOT going to be to your liking. I wouldn't be surprised if the whole thing is thrown out of court completely. What should have happen and what may happen is the CITY Zoning department may enforce some fines onto the resident for violating the zoning laws but that is NOT your fight. If your HOA owns the streets of your HOA, the zoning department may not even be able to do that.
If your HOA owns the roads and they aren't public, then they can indeed do some kind of control IF the documents allow. That may be towing, fining, or other method available to them. Otherwise, this is a city problem and you need to address the city at their meetings NOT the HOA. Dragging the HOA into this just brings in ALL your neighbors and forcing them to pay for your issues. Not very fair to the rest of the membership is it? |
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MariB
(South Carolina)
Posts:33
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| 10/28/2011 5:47 AM |
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Ok again, the zoning office and the county attorney state that it would be beneficial to THE case that a rep. from the HOA appear in court. They too can state that they sent letters to this guy that went ignored, they saw the house and pics also, they received letters from other neighbors anonymously about the nuisance of the traffic, etc from this guy having his business from home.
Having an HOA member would be beneficial again as the zoning and county attorney tell me. They said it would be great to have them come to court. They say.....not me say. They are the professionals and know what wins cases. Again if they said it was not beneficial, I would not ask.
So........after explaining this to the HOA president, she still doesn't want to mess with it even after knowing the benefits.
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MariB
(South Carolina)
Posts:33
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| 10/28/2011 5:54 AM |
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| Melissa, the end ruling is more than likely going to be in my favor. At least that's how zoning and the county attorney feel with my evidence and with consulting other attorneys (letting them view the evidence). But it never hurts to have extra backup. |
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SusanW1
(Michigan)
Posts:5202
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| 10/28/2011 6:01 AM |
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What does the HOA's attorney say?
The zoning board is looking for a complaintant - and your HOA is not stepping up.
I suppose as a Member, you can represent the HOA - IF the board assigns you to do that (as their representtive in the case.) Just carry their correspondences to the court hearings.
Your HOA attorney should be guiding everyone in this "case."
Remind the board that this is a slippery slope. This year, landscaping trucks, next year, carpnters, carpet/flooring trucks, building contractors, etc. etc.
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 6:18 AM |
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My lawyer tells me I will win every case he represents me in too...Funny how that works when you pay them...Don't even know why you have a "Zoning lawyer". If it's a violation of the CC&R's then that is CONTRACTUAL disagreement...
I still say your not going to "win" this case. You have just spent a bunch of money for a lawyer, court filings, and plenty of frustration to get what result? The neighbor to move their company truck? Wow...Sometimes some of us cut-off our nose despite our face...For what it's worth, make sure you do ask for your legal costs when you go to court. Otherwise, the court won't give you that...Glad the HOA isn't paying money out of their budget for this...
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Former HOA President |
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JeffR7
(California)
Posts:245
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| 10/28/2011 9:24 AM |
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So who is suing who in this case?
Is this a civil matter between you and your neighbor? Or is this your city government (through zoning commission) suing this resident.
If this is not spelled our in hour HOA's governing documents why do you expect your HOA to step up. They have no business getting involved in neighbor disputes or in enforcing city ordinances.
If this is your zoning commission doing why are they going to court? They can simply issue fines and demand that the business is closed, assuming of course that the are doing that.
Something doesn't add up here.
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 10:30 AM |
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I agree with you Jeff. Some things don't add up. You will notice in the original post the person said the VIOLATOR requested the Jury trial. This is an option when going to court. It can be either Judge ruled or Jury ruled. Very unusual for a jury trial so the fines or money involved must be high.
My assumption is that the zoning authority has issued fines against the landscape owner. They just have ignored them. Which they CAN do. However, fines don't go away and eventually they have to be paid. The city zoning department should have full reign on this. I have no idea why the neighbor is involved further than reporting and giving proof as a WITNESS to the Zoning committee's case. Which is probably what is really occurring. They will probably be more of a witness than a filer. Which means they will only get the benefit of the zoning department winning their case. Of course, they will get to claim that victory as their own...
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Former HOA President |
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BradP
(Kansas)
Posts:2491
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| 10/28/2011 10:37 AM |
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Mari:
here is a wild thought, have a board member resign and have the HOA appoint you to fill the vacant spot so you can then be an official representative of the HOA. As I read this it is a pretty typical thing, everyone grumbles behind closed doors and doesn't like it but when the lights are on and the camera rolling they don't want anything to do with it because they don't want to go to court or don't want to get in a fight with their neighbor. The board is the same way, I think in this instance a management company would be extremely beneficial to you.
The county attorney and zoning folks are not "your" folks so if they tell you that the case is strong I would believe them, otherwise they wouldn't be wasting their time. They are just trying to get as many complainants as possible to strengthen the case, but I would think you would be enough since you are a member of the association.
After this is all done I would in an open board meeting express your disappointment in the board and ask them to look into a management company, if you don't have one, so this type of stuff doesn't happen again.
Good luck |
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BradP
(Kansas)
Posts:2491
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| 10/28/2011 10:39 AM |
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Posted By MelissaP1 on 10/28/2011 10:30 AM
I agree with you Jeff. Some things don't add up. You will notice in the original post the person said the VIOLATOR requested the Jury trial. This is an option when going to court. It can be either Judge ruled or Jury ruled. Very unusual for a jury trial so the fines or money involved must be high.
My assumption is that the zoning authority has issued fines against the landscape owner. They just have ignored them. Which they CAN do. However, fines don't go away and eventually they have to be paid. The city zoning department should have full reign on this. I have no idea why the neighbor is involved further than reporting and giving proof as a WITNESS to the Zoning committee's case. Which is probably what is really occurring. They will probably be more of a witness than a filer. Which means they will only get the benefit of the zoning department winning their case. Of course, they will get to claim that victory as their own...
If they don't have Mari as a witness and complainant then their case is pretty weak...The county is trying to bolster their case with as many complainants and evidence as possible to make it a slam dunk. I doubt they even take this to court without a complainant because these types of cases are not high priority if no one complains. Pretty cut and dried. |
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 10:53 AM |
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It is getting a bit clearer to me now. I am sure she is going to be a witness in this case. It didn't come off that way when I first read the post. Thought she had hired her own attorney and filed the case. It now sounds like her evidence of pictures and such will bolster the case of the zoning department. In that aspect, the CITY does have a good chance in winning.
It's just NOT her case nor the HOA's. It is the City's case. Her role in it was to report the violation and play witness for the prosecution. I think asking the HOA to be involved isn't really their place. The rules of the HOA would be a good evidence for the case but the actual HOA being part of it no way...
Funny, how people want to blame their HOA for things they aren't responsible for and then call them useless...Maybe next time make sure the tree your barking up is one with the cat in it... |
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Former HOA President |
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BradP
(Kansas)
Posts:2491
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| 10/28/2011 11:01 AM |
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| I would disagree with that if her documents say what ours say. We can not have home businesses that cause an increase in traffic or disruption as this obviously has. If this is the case the HOA failed by not doing what they should have done. Any way you slice it the county or zoning board would not have gotten involved without a complainant so that either has to be the HOA or someone else. |
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 11:47 AM |
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Most HOA's have a rule against having the home as a business. Translating you can't buy a house and put the shingle out saying "Psychiatrist". However, just like the ability to fine in most HOA's, it's NOT defined. Meaning the HOA can restrict the homes being used as businesses (Not Home interior or home based business etc) but has little punishment to enforce it. It's not like you can place a lien or foreclose for having a business on the property. There has to be other factors involved.
What the HOA can do (and I hate to post it here) is report it to the appropriate authority. In this case, it was reported to the City's zoning department for the illegal parking. Worst case for this company is they city may revoke their business license for that address and give them a hefty fine for the violations. The HOA involvement would be limited to the reporting and maybe witness if they chose. As for the business aspect, this could be reported to the IRS. The IRS could frown upon this as a business has to meet certain criteria. It can be based at a home, but that area has to be exclusively used for that business. A guest bedroom can be converted into an "Office" and that space of that room claimed on the taxes IF this was a "Normal" home. However, it being in a HOA with rules regarding the use of the property, this may cause a conflict. The IRS may choose to do an audit. Again, not involving the HOA directly.
When I moved out of my HOA, I had my own contracting business in my home. It taught me a few things...Plus our HOA had a code violation called on it by a neighbor next to our HOA. I learned the system pretty good that month as we faced a possible 10K fine or jail time...Which is probably why this contractor is choosing the jury trial to avoid some possible incarceration.... |
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Former HOA President |
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BradP
(Kansas)
Posts:2491
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| 10/28/2011 11:53 AM |
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| we can fine, lien and foreclose for operating a home business in our hoa and there are certain criteria it has to meet and certain businesses (i.e. day care) are exempt. |
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JeffR7
(California)
Posts:245
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| 10/28/2011 11:56 AM |
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Melissa, i am not sure what you are saying. What does IRS have to do with it? What does HOA has to do with a tax write off?
If the HOA has a limitation on home business they can deal with it just like any other violation. If this is a zoning issues the HOA has nothing to do with it. |
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BruceF1
(Connecticut)
Posts:1510
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| 10/28/2011 1:21 PM |
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Posted By JeffR7 on 10/28/2011 11:56 AM
What does IRS have to do with it? What does HOA has to do with a tax write off?
Nothing. Absolutely nothing.
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 2:35 PM |
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The HOA has no write off with the IRS. It involves the individual home owner. If your operating a business inside a home NOT allowed for that use, the IRS may want to do an audit on that situation. You could open a business out of your garage and claim that on your taxes. Fine and dandy. However, you open a business in your garage in a HOA that has rules against businesses being run on their property, that may raise a red flag at the IRS level. An audit may be performed.
Your essentially putting your business at risk if you open one up in your HOA. It's best to have it off your property and better tax breaks for doing so. Home businesses such as day cares, avon, Mary-Kay cosmetics and other type of businesses are usually exempt. It's more of the "Professional" type businesses such as Lawyer, doctor, dentist, or psychiatrist that require a license to practice that aren't exempt. Having just a business license doesn't make you subject necessarily to the rules of the HOA if there are allowances. |
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Former HOA President |
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BradP
(Kansas)
Posts:2491
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| 10/28/2011 2:37 PM |
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Posted By MelissaP1 on 10/28/2011 2:35 PM
The HOA has no write off with the IRS. It involves the individual home owner. If your operating a business inside a home NOT allowed for that use, the IRS may want to do an audit on that situation. You could open a business out of your garage and claim that on your taxes. Fine and dandy. However, you open a business in your garage in a HOA that has rules against businesses being run on their property, that may raise a red flag at the IRS level. An audit may be performed.
Your essentially putting your business at risk if you open one up in your HOA. It's best to have it off your property and better tax breaks for doing so. Home businesses such as day cares, avon, Mary-Kay cosmetics and other type of businesses are usually exempt. It's more of the "Professional" type businesses such as Lawyer, doctor, dentist, or psychiatrist that require a license to practice that aren't exempt. Having just a business license doesn't make you subject necessarily to the rules of the HOA if there are allowances.
The IRS doesn't care if you open a hair salon in the middle of the street, all they care about is getting their money and making sure you aren't cheating on your deductions. |
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MelissaP1
(Alabama)
Posts:2207
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| 10/28/2011 2:46 PM |
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Yes I agree...but you could be cheating on your deductions by not reporting that your working in an approved space. Plus any fines or judgements your subjecting your business to by operating it in a HOA. How would you claim your business loss because of fines your paying to keep your business operating in a HOA?
You can claim legal costs if related to investment property. Your business is investment property. Defending your property from the HOA could show up on your tax form...This is why people think they can claim their dues as a business expense... Another red flag...You can claim the dues if the property is RENTAL but NOT if it's your business. Or atleast you shouldn't since it's likely the IRS already knows about the "No business rules in most HOA's".
All I am saying is that the IRS may come a calling if it isn't the HOA...Just don't do business in your HOA unless it's approved... |
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Former HOA President |
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BruceF1
(Connecticut)
Posts:1510
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| 10/28/2011 3:06 PM |
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Melissa,
I am presently taking a course for becoming a paid professional tax preparer, so I am pretty well versed on the IRS requirements for taking a deduction for a business in your home. We recently studied the IRS requirements for taking a tax deduction for the business use of your home.
I can tell you flatly that whether or not your home is zoned for business use or whether or not an HOA permits your home to be used for business is NOT anywhere on the list of IRS requirements. I can send you a copy of the IRS requirements and/or the required forms and worksheets, if you like. That's not one of the questions the IRS asks (nor will they ever check).
In fact, there are many business activities that can be performed in a home for which a tax deduction would be allowed that have nothing to do with zoning or HOA permissions. Actually, from all outward appearances, no one would ever be able to tell there is any business activity being conducted in the home. There are numerous examples, but one example would be a salesperson that stores products or samples in a closet, a room, or a portion of the inside of the home. That qualifies for a deduction. A person could use one room of the home for an office where they make business calls, set up appointments, perform paperwork, bookkeeping activities, product ordering, etc. A person could run an internet business from a room in his or her home. No one would ever be aware that any business activity is going on.
Also, these days there are many occupations (especially professional occupations) where people do not have an office at their employer's location, but perform work at an office at home. The advantage to the employer is lower cost because the employer needs less real estate and smaller buildings since the employer does not need to provide office space for those employees. I know several people where this is the case. They can take a business deduction for the portion of the home that is being used for that purpose.
Actually, so far, the only reference to an HOA in IRS instructions I've seen relative to personal income taxes is that you cannot deduct HOA dues from your taxes. |
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JonD1
(New York)
Posts:771
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| 10/28/2011 3:50 PM |
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Mari:
I give you credit for making the time and putting in the effort to follow this matter through.
Today most folks just are to dumb or lazy to do anything about protecting their property or investments.
I for one would do everything possible to end the business being run out of your neighborhood. Next you might have a junk yard pop up anyone have a problem with that?
To many simpletons think they get to do as they please even though they buy into a HOA and can't seem to follow the rules and regulations that protect your property and theirs.
I understand the case is being pushed by the city zoning officials. Not all that complicated. To bad they could not subpoena the members of the Board or your neighbors. IMO like many today they are gutless. Complain, roll your eyes, talk behind peoples backs but when its time to put up they all can't be found. Sad reality of the world we live in today.
I have appeared in court several times over the years representing the property in cases that affected the property. Many times alone while everyone else sat on their behinds and did nothing. You have to admire people like that!
The Board's job IMO is to act in the best interest of the property. IMO helping end this business from being run out of a residence is just that.
And one final thought. Some people have lots to say about things they know very litte about. In this case wooden nickel lawyers who believe they have the answers and understand the situation when they simply do not. My opinion ignore them. Just folks who like to hear themsleves talk as if what they have to say matters. Empty barrels.
Good luck and I hope the zoning authority can put an end to your problem. Let us all know how this works out I'm sure some of the legal eagles here might be able to learn something. |
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