FredB4
(Ohio)
Posts:250
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| 11/09/2011 1:43 PM |
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What would you do in this situation ? We have a 2 person per bedroom rule which is in keeping with all State laws and Federal fair housing standards. A tenant moved into a two bedroom unit with 4 children. She signed a lease saying there would be no more than 4 people living in the unit and signed our renter's agreement stating the same.
The owner called her to remind her that she was in violation of her agreement and that it was reported that there were 5 people living in the unit.
Her response was that the smallest child (4 years old) wasn't hers and that the father dropped the child off between 5 and 6 AM and the mother picked it up around eleven PM. She claims that she just takes the child to the baby sitter and keeps it until the parents pick it up.
No one ever sees anyone coming and going with the child at those hours and one of the children told an owner that it was "just mum and us four kids".
The tenant says she will take the association to court if we bring up the topic again which makes us even more suspecious.
The tenant leaves with the 4 children around 8 AM and returns around 5:30 PM. The child is also there on weekends.
Has anyone ever come across this type of situation before ? Any suggestions ?
Thanks,
Fred
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RichardP13
(California)
Posts:836
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| 11/09/2011 2:43 PM |
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| In my opinion, this is not an association issue, but rather an owner/tenant issue as "The owner called her to remind her that she was in violation of her agreement". |
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FredB4
(Ohio)
Posts:250
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| 11/09/2011 5:01 PM |
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I agree it is an owner issue but how do you make the owner make her tenant comply if the tenant continues to lie ? When the owner isn't able to prove it and is unable to force the tenant to comply, then it becomes the associations problem to deal with the owner and you are back to square one having to prove that the tenant isn't telling the truth and therefore is violating the rule that you expect the owner to make her tenant to follow.
I'm wondering what legal rights an association or owner has, if any, in requesting proof that the fourth child isn't hers and isn't staying there.
The association has a legal responsibility to be sure that rules and regulations are followed or the association can be sued.
It is much more complex than just saying it is an owner issue and could open the association up to being named as a party in a law suite since it is the association's rule. |
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TimB4
(Virginia)
Posts:3801
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| 11/09/2011 5:11 PM |
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Posted By FredB4 on 11/09/2011 5:01 PM
When the owner isn't able to prove it and is unable to force the tenant to comply, then it becomes the associations problem to deal with the owner and you are back to square one having to prove that the tenant isn't telling the truth and therefore is violating the rule that you expect the owner to make her tenant to follow.
Well the issue is as you plainly stated. You need to prove it.
Depending how long the lease is, have a talk with the owner. Perhaps they will just refuse to renew it.
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SteveM9
(Massachusetts)
Posts:1529
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| 11/09/2011 5:30 PM |
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The association has a legal responsibility to be sure that rules and regulations are followed or the association can be sued.
The association looked into it. Owner said 5th person was not living there. The HOA fulfilled its duty to uphold the regulations. The End.
Unless someone can prove the 5th person is living there, the association has nothing left to do. |
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PetunkaM
(Florida)
Posts:958
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| 11/09/2011 5:43 PM |
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What would you do in this situation ?
Fred,
I would leave the woman alone.
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FionaC
(California)
Posts:212
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| 11/09/2011 6:06 PM |
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Posted By PetunkaM on 11/09/2011 5:43 PM
What would you do in this situation ?
Fred,
I would leave the woman alone.
I definitely would leave the woman alone. She is a tenant and you should not be speaking or talking to her directly. That is her landlords job. As far as taking legal actions, she certainly may have a claim whether or not she has 3 kids of 4 kids.. because you have no authority over her and it can be viewed as HARASSMENT.
KEEP contact with her landlord.
In todays world, it is hard enough for a single mom with multiple kids to get by. I can only imagine how she feels.. it's her landlords fault she is there, not hers. The owner should be more aware of whats going on. At the end of the day, it's the owners issues. |
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FredB4
(Ohio)
Posts:250
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| 11/10/2011 4:42 AM |
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Thanks for your input. The association is only dealing with the situation through the owner and we are not talking to the tenant directly. While we have symapthy for the mother and kids the issue really isn't about the number of children or mother, but the number of occupants. The owner is upset about this as well and to complicate things the owner is also a board member.
When you allow one owner to break a rule you must allow all owners to break the same rule.In fact, you need to offically remove the rule or it could put the association in risk of legal action from other owners.
Overcrowed units leads to devalued properties, added expense to all owners in water and sewer bills etc. and when another owner rents to 5 people they only need to say there are five people renting in unit XXX. The board says but the fifth person isn't really living there and the other landlord says well the fifth person in my unit isn't actually living there either and on it goes.
Harrasment, I guess would be the issue if it went to court but since the association has a legal obligation to protect the property values and uphold the rules and regulations, I'm not sure ignoring the problem is the right answer. |
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JonD1
(New York)
Posts:771
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| 11/10/2011 5:43 AM |
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Fred:
It is NOT the owners job to enforce the rules on your property. It is the Board's.
There sems to be enough blame to go around here. The owner made the mistake if sigining alease with this woman. The woman is acting in a manner not permitted by the rules and then makes threats of legal action.
Harrasment is a criminal act not enforcing rules of your property. If I had a nickle for each time someone used legal threats I would be rich.
Is there a lease? How long is the current lease for?
Are there fines for rule violations? In what amount?
As you suggest to allow this opens others up to violate rules and then the Board would appear to pick and choose which they enforce and which they allow to happen.
Lets be clear sounds like the woman is playing games. Hide the child cannot be allowed to continue. Some people on our property have claimed small kids should not be counted as people. Our rules also limit 2 per bedroom sounds about right. No size, age or height. Three kids don't add up to one adult sort of nonsnese.
My suggestion uphold you rules and regulations and strongly suggest to the owner they NOT renew the lease when it comes up. If here is in fact a lease.
My leases provide that rule violations are grounds for eviction AND any and all fines will be paid by the tenant. Sets things right from the start.
If the Board allows this to continue you are simply not doing your job. |
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BradP
(Kansas)
Posts:2491
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| 11/10/2011 8:01 AM |
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Posted By JonD1 on 11/10/2011 5:43 AM
Fred:
It is NOT the owners job to enforce the rules on your property. It is the Board's.
There sems to be enough blame to go around here. The owner made the mistake if sigining alease with this woman. The woman is acting in a manner not permitted by the rules and then makes threats of legal action.
Harrasment is a criminal act not enforcing rules of your property. If I had a nickle for each time someone used legal threats I would be rich.
Is there a lease? How long is the current lease for?
Are there fines for rule violations? In what amount?
As you suggest to allow this opens others up to violate rules and then the Board would appear to pick and choose which they enforce and which they allow to happen.
Lets be clear sounds like the woman is playing games. Hide the child cannot be allowed to continue. Some people on our property have claimed small kids should not be counted as people. Our rules also limit 2 per bedroom sounds about right. No size, age or height. Three kids don't add up to one adult sort of nonsnese.
My suggestion uphold you rules and regulations and strongly suggest to the owner they NOT renew the lease when it comes up. If here is in fact a lease.
My leases provide that rule violations are grounds for eviction AND any and all fines will be paid by the tenant. Sets things right from the start.
If the Board allows this to continue you are simply not doing your job.
Jon:
I would disagree with you, the owner is responsible for their property and if they have a tenant breaking the rules that is the owner's job to fix it. I don't think this case is worth the potential legal fight. You can't prove beyond a reasonable doubt that the 5th person lives there. The association asked the question, was given an answer and is now faced with a difficult and almost impossible task of proving she is a liar.
Sometimes you have to know what fights to pick and to me this isn't worth getting into. I would instead send this to the local code enforcer/fire department and let them investigate if it breaks a local code.
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FionaC
(California)
Posts:212
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| 11/10/2011 9:37 AM |
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I'd just say this is not a fun situation and I feel for all involved. However, the landlord knows the rules, and I assume the renter did too...
Definitely not the first incident like this to happen...
SIngle mom with multiple kids? I grew up in a house..not a condo or an apt. where i shared a room with my not one but 3 other sisters.. how times have changed, no we weren't considered poor, nor were we looked down upon, it was not unusual for kids ( more than 2 ) to share a room..
But in a condo complex, or a HOA this does have a baring on the property..
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FionaC
(California)
Posts:212
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| 11/10/2011 9:37 AM |
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I'd just say this is not a fun situation and I feel for all involved. However, the landlord knows the rules, and I assume the renter did too...
Definitely not the first incident like this to happen...
SIngle mom with multiple kids? I grew up in a house..not a condo or an apt. where i shared a room with my not one but 3 other sisters.. how times have changed, no we weren't considered poor, nor were we looked down upon, it was not unusual for kids ( more than 2 ) to share a room..
But in a condo complex, or a HOA this does have a baring on the property..
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FredB4
(Ohio)
Posts:250
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| 11/10/2011 10:14 AM |
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Yes there is a signed lease that specifically states that there will not be more than 4 people occupying the unit. The tenant also signed an association renter's agreement that specifically states that they will abide by all the rules and regulations and it specifically mentions 4 occupants per unit as well.
The tenant, if she in fact has 5 occupants, outright lied.
Yes, we do have a fining procedure. $25 the first notice, $50 the second etc. but proving it is the problem. How do you fine an owner for a violation that she can't prove ?
I need to emphasize again that the issue isn't the kids, it's the number of occupants. I mentioned the kids because it is odd that she claims the four year old kid only goes "home" between 11:00 PM and 6:00 AM. The rest of the time it is at the sitters or staying in the unit. |
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MelS
(Colorado)
Posts:1
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| 11/10/2011 10:47 AM |
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| You need to check with your legal counsel. Occupancy limits vary by state and in most cases do not include extended family. Not sure if Fair Housing comes into play on this one and would superceed your governing documents. |
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FredB4
(Ohio)
Posts:250
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| 11/10/2011 2:06 PM |
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| 2 people per bedroom fits within both State and Federal Fair Housing guidelines for that size unit. |
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JonD1
(New York)
Posts:771
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| 11/10/2011 3:25 PM |
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Fred:
A violation of your property's rules does NOT constitute a criminal act therefore as was suggested you need not PROVE beyond a reasonable doubt that this tenant is exceeding the number of occupants allowed.
Reasonable doubt has NOTHING to do with this case.
I have always been amazed that many people think the rules and regulations work under the same standards as a criminal court proceeding.
THEY DO NOT.
You do not need a smoking gun or photos to act. Obviously, the tenant is jerking your chain just up to you to decide if you will allow that or not.
Sounds to me like the Board doesn't have the stomach to handle a difficult situation and a difficult tenant. She has no real interest in your property but seems to have been given or in this case TAKEN advantage of a position in which she should have no cards to play.
IF a signed lease exists then the Board should request the owner take action. How long does the lease run?
Is the owner willing to assit in settling this or have they thrown their hands up and sat by?
I would request the owner act. If no I would issue fines. I would then suggest strongly theu inform the tenant their lease will not be re-newed and their best option would be they move now.
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GlenL
(Ohio)
Posts:3621
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| 11/10/2011 5:47 PM |
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| Fred just out of curiosity what happens to a family of four (mother, father & two kids) if they have a third child? Mel is right, you really, really need to check with the HOA's attorney BEFORE the Board gets involved. |
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Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW |
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FredB4
(Ohio)
Posts:250
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| 11/11/2011 4:28 AM |
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Jon,
You think along the same lines as I do.
The board is willing to act and so is the owner. The lease is new and is valid until next October.I was curious if anyone else had come across this type of situation and how they handled it. We are staying out of this for the moment and allowing the owner to take the lead and even though she is on the board herself, the majority of the board is willing to fine her until she makes her tenant comply.
However we obviously we want to handle this in the best way possible.
You are correct that association rules and regulations work under different standards than criminal or civil court proceedings and boards now have broad powers in Ohio when it comes to administering their duties, but if it went to court it could get tricky. State and Federal laws trump association CC&R's.including ourselves, hae
This thread and other similar threads have shown that many people have more sympathy for the mother and children then the basic issue of number of occupants and rules.
Glen,
We would consult an attorney before doing anything drastic and maybe even charge that expense to the owner. The Federal Fair Housing Act allows for the addition of a baby in the case of a mother, father and two children (four + one)if the baby is born after the family is living there. What isn't clear is what happens after the baby reaches 6 months of age since the Fair Housing Act seems to imply that the exception covers a child under the age of 6 months.
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TimB4
(Virginia)
Posts:3801
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JonD1
(New York)
Posts:771
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| 11/11/2011 5:36 AM |
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Fred:
Lets say a tenant moves into your property. You have a rule that states tenants are no permitted to have pets.
The tenant after a few months brings home a dog. But claims the dog is just visiting or they are watching the dog for a friend.
That would be a violation. What action would the Board take?
And the difference in your situation would be what?
IMO the Board should act on both situations.
We have a 2 person per bedroom limit as you. We have had situations when the owners were not aware until we made them aware their tenants had more people residing in the unit. We contacted the owners and suggested that it was in their best interest to resolve this or fines would be forthcoming. We have never been dragged into court.
Fear of legal action or the possible outcome should not prevent the Board from acting in doing their jobs.
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DJ1
(Ontario)
Posts:781
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| 11/11/2011 5:50 AM |
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"How do you fine an owner for a violation that she can't prove ?"
Are you kidding? That statement begs the question, How does the HOA fine an owner for a violation they can't prove? HOA's shouldn't fine for violations they suspect may be occurring. It seems they have enough work fining for the ones they can prove are occurring. Quit the fishing exercise and either get the proof or move on with more important issues.
Assuming one could prove property is devalued when there are more than 2 occupants per room, people would need to know for sure there were more than 2 people before devaluation occurred...not when there maybe, might be, could be! |
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BradP
(Kansas)
Posts:2491
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| 11/11/2011 7:14 AM |
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let's get real here...the board just can't start fining folks and enforcing things they may think exist. The board has the burden to prove it happens. Just like you can't show up in court and say your honor I want to sue this man for this because I think he did that but I don't have any real proof.
I would get a lawyer on this one before you dive into scalding hot water, this is not a topic to seek advice from this board in my opinion. |
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MelissaP1
(Alabama)
Posts:2207
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| 11/11/2011 7:39 AM |
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I agree with you BradP on this one...However, I don't understand the exact setup of this HOA. Is it a condo or separate properties? I just don't know how the HOA could enforce such an occupancy rule to begin with since they don't own the property. The occupency rule would apply to the actual owner of the home NOT the HOA. The restrictions may be written in their documents but gray area on the actual enforcement of that rule exist.
Overall, the HOA can only hold the owner to the ground on this one and NOT the tenant. They shouldn't even be contacting the tenant. It isn't their responsibility as the HOA can't disturb a contract of an owner and their tenant. The tenant isn't bound to the HOA. It's the owner's responsiblity to make sure the tenant abides by the HOA rules as a condition of their lease agreement. The owner should have had this written into their lease agreement with the tenant. (Most leases don't have this as a standard form). This way the owner could have more authority in cancelling their lease agreement. That is because there is such a thing as "Tenant laws" which does prevent improper eviction. Terminating a lease has to happen according to breaking terms in that lease contract. If that rule of occupency isn't in there, the owner can NOT evict their tenant for it. The tenant can sue the owner. The owner's option would be to wait for the lease terms to run out and NOT to renew it. That means if it were a 1 year lease, everyone has to wait it out until it ends...The HOA can't do anything to speed up that process. |
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Former HOA President |
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DoloresM2
(California)
Posts:25
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| 11/11/2011 10:22 AM |
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I think there are ways to find out if the tenant has four children but is it worth it. Nothing I have read so far has indicated that this tenant is causing any problems (other than possibly misleading owner on lease) in the community. She is on a year's lease and that would expire about the time all the owner's efforts to background check and follow through with an eviction. Why not wait until her lease is up and tell her it will not be renewed.
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FredB4
(Ohio)
Posts:250
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| 11/11/2011 1:06 PM |
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Tim,
Thanks for the links . That is very helpful. Yes it is very confusing and I have been unable to get a staright answer from any of the government departments either.
Jon,
Good point but the tenant was aware and it was written in the lease. You are right we would acton the pet and if the laws on this issue were a little more straight forward we wouldn't hesitate about this either, but as Tim pointed out laws on this are very confusing. It seems to be set up to force you to take it to court and let a judge decide and hope that he interperts the law in your favor and not in the tenants favor. $$$$$
DJ and Brad,
We wouldn't force an owner to fine or evict for something we didn't think she could prove. This is why we are trying to find a solutuion BEFORE we take any action. We are working with the owner and she alone is dealing with the tenant.
Melissa,
I should have mentioned previously that it is a condo situation, because you are right that does make a difference in what the board's responsibilities are since the property is owned jointly by all owners. I'm not sure if a landlord can just not renew a lease without just cause.
Dolores,
We are a small community of 48 units, news travels fast and renting to single parents with 4 or 5 kids would be easy and very tempting for a couple of our owners who rent. Besides it is unfair to owners who live under or next door. They are older buildings and sound travels.
It also puts an extra burden ( although small) on all owners since the water and sewer is part of the COA fee. Those of you who have been on a board know how difficult some owners can get over small things.
As tempting as it is to let this slide and hope the problem goes away, it is the boards legal responsibility to enforce all rules and regulations and not doing so can lead to multiple problems. |
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JonD1
(New York)
Posts:771
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| 11/11/2011 1:09 PM |
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Brad:
Here is my best attempt at getting real. Just where does it state or require any Board to have the "burden of proof" when it comes to rules and regulations in an HOA? This si not a court of law nor has there been a violation of the criminal code.
The Board as part of their duties should look into violations and judge them to be real and then act upon those they determine requires action.
Like most rules violations this matter will never go to court and require the Board to present a smoking gun.
As Fred has stated the owner has a signed lease limiting the number of occupants. This tenant is in violation of that limit whether they wish to acknowledge that or not.
Now the Board is supposed to enforce those rules either through forcing action by the owner or if necessary by fining the unit owner.
Regardless of what might happen, could happen, afraid this might happen, and being unwilling to perform their duties as a Board.
You enforce the rules not some, sometimes but all, all the time.
Taking the easy way out and turning a blind eye will in the long run bite you in the _____.
Many HOA do have a residence restriction of being single family occupancy. So they can have and enforce such rules.
Condos or townhouses can also have such restrictions and if they are inclined can enforce them. Depending on whether they wish to do their jobs or not.
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JonD1
(New York)
Posts:771
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| 11/11/2011 1:10 PM |
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Brad:
Here is my best attempt at getting real. Just where does it state or require any Board to have the "burden of proof" when it comes to rules and regulations in an HOA? This si not a court of law nor has there been a violation of the criminal code.
The Board as part of their duties should look into violations and judge them to be real and then act upon those they determine requires action.
Like most rules violations this matter will never go to court and require the Board to present a smoking gun.
As Fred has stated the owner has a signed lease limiting the number of occupants. This tenant is in violation of that limit whether they wish to acknowledge that or not.
Now the Board is supposed to enforce those rules either through forcing action by the owner or if necessary by fining the unit owner.
Regardless of what might happen, could happen, afraid this might happen, and being unwilling to perform their duties as a Board.
You enforce the rules not some, sometimes but all, all the time.
Taking the easy way out and turning a blind eye will in the long run bite you in the _____.
Many HOA do have a residence restriction of being single family occupancy. So they can have and enforce such rules.
Condos or townhouses can also have such restrictions and if they are inclined can enforce them. Depending on whether they wish to do their jobs or not.
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BradP
(Kansas)
Posts:2491
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| 11/11/2011 2:17 PM |
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Jon:
you are correct, my documents do not have a provision that requires the board to actually have any proof to fine, in reality we could fine for whatever we wanted whenever we want whether it is real or not and could actually make up stories if we wanted to.
However, state law in Kansas dictates the following (and I am paraphrasing)
That we have the right not to enforce a covenant if our legal position does not justify taking action, the rule or covenant most likely conflicts with laws, even if it exists it is not so material to warrant taking action, or it is not in the best interest of the association to pursue.
Kansas law also states that boards must exercise the same degree of care and loyalty to the association as any corporation officer or director.
Here comes the tricky part and we can role play a bit. Lets say your board sents a violation notice to me for having to many people in my home, I give you my explanation and disagree with it. You fine me, I decide that isn't right and exercise my right to either arbitration or to a court of law. In the court or arbitration I lay out my defense for why I feel this fine is not right and the judge or arbitrator will turn to you and ask for the association's proof.
In this situation the tenant has given her defense, how is the board going to proof this? Yes they could fine her and yes she could back down and admit she lied and paid it and everyone goes on their merry way...but if she fights it, where is the proof and how do you get it?
As a board member myself I think it is absolutely foolish to subject yourself and your association to a potential lawsuit and loss of thousands of dollars if you don't have proof and don't believe your case will hold up. The thought that this case may never end up in court is why you see horror stories of HOA board's and the decisions they make plastered all over the news. Hence my suggestion to involve your attorney.
So, based on this case and based on Kansas law as a director and officer with a similar case I would not be exercising the same care as a corporation officer if I fined someone without proof and I also have the right not to enforce this rule if I don't believe enough evidence exists or I believe the rule is not worth the pursuit. |
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FredB4
(Ohio)
Posts:250
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| 11/11/2011 2:32 PM |
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Brad,
The following quote from you response is very interesting and something that didn't occur to me ..."That we have the right not to enforce a covenant if our legal position does not justify taking action, the rule or covenant most likely conflicts with laws, even if it exists it is not so material to warrant taking action, or it is not in the best interest of the association to pursue."
I think maybe it is worth my checking Ohio state law on this as well.
Jon,
I'm with you on this but unfortunately there are other board members who need to be convinced and are less willing to act without some assurance. |
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BradP
(Kansas)
Posts:2491
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| 11/11/2011 2:38 PM |
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Fred:
we all have our opinions and I am not saying what you should do in this case...but in my opinion any board that tries to enforce a covenant without having proper proof to back it up is asking for trouble. You never know when someone who gets a violation letter will send you a court summons. There was a thread on here recently that talked about liability and reducing it...this is a good start in my opinion.
Good luck with this issue, I hope it works out in the end for everyone. |
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