tenant is not telling the truth ... probably

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".

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.

What would you do in this situation ?

Fred,

I would leave the woman alone.

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.

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.

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..

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.

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.

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.

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.

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.

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.

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.

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.

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.

Fred:

Just what assurance is the Board looking for? That in the end everything well work out for them? Unless you find a crystal ball impossible to provide.

In that case better to wait till next October when the lease ends. That's IF the owner does not renew the lease. If they do what then?

Don't know where you get the concern over an owner not renewing a lease without cause. You don't have to provide cause and in this case the owner does have cause they violated the lease.

Brad not sure under your requirments when if ever the Board might issue a violation. Your need to have proof to a degree that would satisfy you leaves little chance to ever feel comfortable with taking actions.

Brad's assertion that HIS state law allows the loop hole to ignore any bylaw rule that they decide conflicts with state law or regulations IMO provides an easy way out to do nothing.
Plus Brad and you reside in different states.

Our attorney advised us we have the right to set occupancy limits. 2 per bedroom. SOP.

And as in Fred's case as part of the CCs we provide water and sewer which would certainly increase when you now have 5 people living in one unit. So IMO this Board is failing to protect all the other owners from increased costs. Not sure in Fred's case but our water and sewer cost is the largest single expense for our property.

Why did we implement our limit because at one time we had a 2 bedroom unit rented out with 22 occupants! 22 YES 22! But we took the risk and contacted the owner and informed them this was not permitted nor fair to all the other owners.

Not sure how things are in Ohio or Kansas but here putting 5 people in a two bedroom unit is NOT commonplace or middleclass.

And we had the same proof Fred now has. Truth and reality. That's where I like to spend most of my day.

Fred tough to do your job when others would rather take the easy way out. But in the end when the next violation takes place how will it be handled? What amount of proof is enough?
And when another owner recieves a violation and complains you didn't bother to enforce the rules on this unit for this rule that would be my concern if we end up in court.

IMO will this be the last time you get multiple people living in a single unit? Not in our world today. Better figure out how you plan to address this as this will be the precedent for any others down the road.

Just wondering what happens when you get 6 people in one unit?

Jon

we will have to agree to disagree...my point is it is not in the best interest of your association to proceed with a violation if you don't have the legal backing (i.e. proof and/or attorney's advice). If Fred wants to proceed on this without contacting his association's attorney that is fine, I would not. I don't like to risk other people's money when I am not sure what we are doing is enforceable. Sometimes there are covenants and rules that are just hard to enforce. You may view it as taking the easy way out, that is fine. At the end of the day Fred should consult his attorney on this if he is upholding his fidicuary duty to the association.

Jon,

"This tenant is in violation of that limit whether they wish to acknowledge that or not. "

FALSE.

The HOA and/HO THINK the tenant may have more than the allowable occupancy. The tenant provided an explanation that one child does not live there. (drop off/pu time)

Unless they are going to post a monitor to verify whether the child is/is not being picked up/dropped off, they have nothing to support a maybe, could be, possibly...