Going to court w/neighbor - HOA won't help

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?

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.

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

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.

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)

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?

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.

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...

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.

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.

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.

Nothing. Absolutely nothing.

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.

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.

Melissa, Bruce is absolutely correct. Not only IRS has absolutely no interest in where your business is located but they have no way of knowing if it's even in an HOA or a condo? To them it's an address.

If you get audited and they find out that you deducted something that you weren't suppose to it will not have any affect on it being in an HOA IRS rules are not any different for HOA homes vs. not HOA homes.

It seems like you are trying to give advice on a subject that you are not proficient at.

Mari, while I did not have a chance to read all posts in detail, yet I agree with Jon 1000%. Go for it.

MariB, what exactly are the HOA rules regarding home businesses? What does it say about response to violations? Your HOA did send a complaining letter. That may be all they can do. There may not be provisions for legal action. The HOA may not have the funds to hire an attorney.

Also, it appears that the matter is being handled by your county attorney as a county code violation. This is not a lawsuit (as the HOA would have to undertake), but a civil trial. *You* are not going to court against this neighbor. The County is doing so.

I understand your feeling that this is "your" case. It would be good if the HOA would offer some backing. Have other neighbors complained about this particular problem? You might ask the president specifically why they are not doing anything further about your complaint. (Are there provisions in the deed restrictions that limit the HOA's involvement in this matter?) I imagine the county attorney will offer the HOA's letter to the neighbor in court. Probably it will be settled out of court with the neighbor paying a fine and stopping the business practice.

Good luck.

If the HOA's Board doesn't want to participate and if the zoning board believes the case will be better with their participation, the Zoning Board can ask the court to subpoena the Board.

If the zoning Board doesn't want to subpoena the Association, then they must be willing to go with what they have.

It's not your responsibility to get the Board to the courtroom.

Tim, the board (HOA president) did receive a summons just as I did. She called the county attorney telling him she had a vacation planned for that time and can not make it.

He asked if she could get us someone to stand in for her that is on the board. She says that this one is looking after a sick parent, this one has a doctor's appt, blah blah blah.

She and I have been talking and communication this whole process and she knows how aggravating and frustrating this had been to deal with. I'm the one having to supply all evidence. I have to face this guy in court. I have to drive 60 miles round trip to appear in court, etc.

Sure the court can subpoena someone, but like you say perhaps they don't think it's mandatory to have them appear to win but that it would help the case. They attempted.

To me, knowing that the HOA knew what I've gone through and knowing that there is finally an end to resolving this, they could at least take some time off for this cause. It's not just my neighborhood but our neighborhood. When the jurors/judge see that the HOA rep came in support of this issue, I think it could only have a positive effect on the case.

They don't have to come, but it would be nice to have their support. If they choose not to take the time, then again I'm disappointed.

Melissa, I'm not sure why it matters who's case it is. It doesn't matter to me one bit. I just want it to stop.

Putting all legalities aside...

I have been working on this for quite a while. I've been taking pics, calling this person, calling that person, etc. So many times I've been tempted to just say forget it and give up. It hadn't been easy but rather stressful to say the least. You can't just make a phone call and it stops. The process takes time.

Throughout this whole ordeal I have been dealing with the HOA in calling them to keep them up to date on what's going on. They asked to be kept updated so out of a courtesy I do since I would think they would take an interest in happenings in the neighborhood.

HOA pres. and I have communicated via e-mail and phone many a time. She has come to my house.

Then when I finally get the court date, I would think they would want to go just to show support. Even if they know they legally don't need to be there, it is still our neighborhood. If a neighbor tells them it would mean a lot to them and be positive for the case, then at least take some time out and help in this situation or try to get another board member. Show some support especially since nothing much else was done from the HOA to help end this. Heck I even offered to drive my car if they wanted a ride.

Perhaps my expectations are too high but that's how I personally feel. Others may feel differently but that's ok.

Mari:

I agree with Jon and your supporters, good for you and good luck. I would say SHAME on your HOA for not backing you or at least offering support. They are supposed to look out for the association as a whole and this type of stuff has no business in a neighborhood. Regardless of whether the documents allow them to take action they should have had a more supportive role.

Honestly, do we think people are always telling the truth 100% of the time when they try to get our of going to court or jury duty? Heck no, I don't buy for a minute that all the HOA board members have valid excuses. Yes it is an inconvenience in life but it is their duty to do this...