Our CC&R state warning first, then fine...can a monthly meeting change that?

Hello, our CC&R's state before a fine will be given, a warning will be issued first. We recently held a monthly board meeting and decided we would not issue any more warnings to violations, just fines. Can someone tell me if this is legal or do the CC&R's take precedence until they are officially amended?

I am confused what you mean. I did not come here to receive sarcastic remarks. Thank you.

Thank you for your reply. A board cannot do whatever it wants but I need to be clear on how it must go about making changes. Does there have to be a vote from the home owners? When does the actual change take effect? Right after the meeting is over? When the CC&R's are amended? I'm sure there must be some notification given with a certain time period lapsing before any new rules can take effect reguardless. One thing is for sure, there is waaaay too many gray areas in HOA Land and what can legally be done.

Jeff if the CC&R's require a warning before a fine then that is what the Board is required to do. If the Board wants to change that then it should work to amend the relevant section. If it is a covenant it would need to be amended as required in your CC&R's and wouldn't be valid until filed with the county. If it is a BY-Law, they seldom have to be filed and would become valid after the required vote. Surely someone on the Board can see the irony of wanting to fine someone for violating the CC&R's by violating the CC&R's themselves. The $64,000 question is why does the Board want to change the policy?

Our policy is we send violators a polite reminder of their obligation to follow the CC&R's and a description of the violation along with notice they have 14 days to cure the violation before being fined. They then have 14 days to cure it or request a hearing to dispute the fine, a second violation of the same thing within a year results in an automatic fine since the Board considers them to have been warned.

Jeff:
I guess my question is why would you want to do that? More and more states are implementing laws that state any homeowner in an association is entitled to a hearing before any fines or sanctions of any kind cab be implemented. You seem to want to treat everyone like criminals immediately. Why? It certainly is not the way to build a good community.
Jeanne

Thank you for all your great replies everyone. There is still due process as enforced by law, but what I'm saying is, there used to be warnings to speeders and such, now they just want to fine first without a warning ticket. That is what I was referring to. More input is welcomed.

Tim, wouldn't you think a fine schedule should be mandatory? How does one know what the fine will be? 1 Person could get a stop sign violation for $25, the next person could get one for $200.

All it says about fines is as follows:

This is under Rules, Regulations and General Info

Fines:

The Association may levy fines against any Owner who is in violation of any of the restrictive covenants or rules and regulations. Such fines can vary with the severity of the violation but currently range from $25.00 to $500.00. Failure to pay fines may subject the Member’s property to a lien in the amount of the unpaid fine plus costs.

That is the only part I was able to read anything about specific dollar amounts.

Jeff

It would be a mistake to go direct to fining. One should be given a written warning citing the infraction and given a reasonable time to correct it. Myself I would suggest initial informational letter, 30 days later a warning letter, 30 days later fining commences.

In your case, I would like to see a little clearer, published fining schedule. Somewhere between $25 and $500 is much to vague and opens the door for two different fines for the same violation.

Something like ACC violation fine of $50 per month.

Improper parking $10 per daily event. Park it 10 nights in a row, then ten $10 fines thus far $100 worth of fines accumulated.

Hope this helps.

The typical order of precedence would be:

Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
CC&Rs
Articles of Incorporation (if your Association is incorporated and most are)
Bylaws
Resolutions (additional rules/regulations adopted by the Board)

No lower precedence document may be in conflict with a higher precedence document. If it is, the higher precedence document would control (or be the one that must be complied with).

Be sure to fully read the documents as State statutes often defer control to the governing documents but have language that would apply if there is nothing about that issue in the governing documents.

Tim, so then would I be correct when I say that because the CC&R's state there will be a warning given first for all offenses that a monthly meeting from 2 months ago cannot change that?

That is unless they were to make a new amendment to the CC&R. Correct?

Yes.
However, to challenge it (if the Board isn't willing to change their mind) you may need to take the Association to court.

In court, the Association could make an argument that a notice in the newsletter of a flyer sent to everyone's home is considered a warning. It would then be up to the judge or court to decide if that argument would be valid.

Would you cite the exact language of that section of the CC&Rs (not paraphrased and not the single sentence but the whole passage)?

I ask because in legalize, every word can have a meaning.

Example: If the passage says a warning will be given prior to fining for violations of the covenants and (using your speed limit as an example) speed limits are not part of the covenants, then a warning might not be required. This is because the covenants likely gave the Board/Association authority over the streets and the right to adopt additional rules/regulations. If the speed limit is part of those rules adopted by the Board then an argument could be made that speeding was not a violation of the covenants and therefore, a warning was not required.

The only thing I see if it says comply with the decisions of the association, however their "decisions" cannot trump a CC&R. Correct?

The overall statement is what you signed for saying you will comply as they existed at your time of purchase. Like them or not, you agreed to comply.

Allow me to repeat that. Like them or not, you agreed to comply with them.

The embolden part, lawfully is the rub. The BOD cannot lawfully pass a Rule and Regulation that bypasses/usurps Covenants, Declarations, Bylaws.

The last part is the part that gives the HOA the right to fine. now a fining schedule is another issue.

Hope this helps.

Jeff,

Thank you for posting the exact language.

Based on what you provided, I do believe that a written notice to comply is required.

The problem being - define written notice.

Is written notice a warning to the individual - certainly
Is written notice an article in the association newsletter - perhaps
Is written notice (in the case of speeding) the speed limit sign - possibly

Since "written notice" isn't defined, unless the membership and the board can come to agreement on what that means you may need a third party (i.e. the courts) to define it for you.

Note: Going with your interpretation of written notice being a warning - I do not believe that members (guests, etc.) who continually violate the same rule/reg (example: speeding) should be given repeated warnings for each violation. A judge may see that differently or they may agree with me. Courts are always a 50/50 shot.

I would suggest that you take your concerns to the Board - along with a proposal for them to consider for a fining schedule and/or enforcement policy (basically not just complaining about an issue but offering a suggestion on how to address the issue). This should be done first as it is typically the quickest and less expensive.

If that doesn't work, I would then suggest gathering support and voting the board out at the next election and/or doing a recall. Then, if you're successful those who volunteer (perhaps you) and are elected to the board may change the decision of the last board.

If you want to prevent future boards from re-interpreting what a "written notice" is, then propose an amendment to define it and gather support to amend either the Bylaws or the CC&Rs.

If you want to take a 50/50 chance, consult with a local attorney and see what your options may be through the court system.

If you are just worried about you or your family incurring fines (vs. addressing the issue for the whole membership) simply comply with the rules/regs of the Association.

Hope this helps,

Tim

Jeff,

Actually, the board may not enforce an adopted resolution that is in "conflict" with the CC&Rs.

If you look at my previous posting, there is a gray area on the interpretation of what defines a written notice. Therefore, unless challenged, the existing board has the authority to make that interpretation. A future board may interpret that section differently. A board after that one may go back to a previous interpretation of that same section.

Therefore, I believe that John and I are actually saying the same thing but in a different way.

Haha, Tim I dunno man. It seems you just contradicted yourself....at least to me. You state the Board cannot make a rul that conflicts with the CC&R.....which they tried to do...

I believe written notice is clearly defined based on their previous monthly meeting. They said they will no longer be giving written notices to each person, just fines...that means the notices they spoke of were on an individual basis, not a posting somewhere and I'm sure most would agree with me there.

But then you say..."unless challenged, the existing board has the authority to make that interpretation" meaning to me at least you are saying the board can change what the CC&R states if they want to think it believes something else....which it clearly doesn't....to me.

Sorry to take up your time. Thanks again!

It is true that the Board can not enforce a rule that conflicts with the CC&Rs


I also know that you believe that written notice is clearly defined.

Based on what you cited, although I agree with you, I can also see that it is not clearly defined and an argument (valid or not) could be made to support the board. Perhaps this is because I am looking at the issue from a different perspective and am not directly involved.

If you have written documentation that the Board previously believed that written notices were considered warnings and not something else, then you may move a legal challenge a little in your favor. Consultation with an attorney, who would have full access to all of your documents would certainly be able to give you better advice than I or others on this forum who don't have access to your documents.


Bottom line, Unless the membership rallies and replace/recall the board or the interpretation is challenged legally, the Board will be able to do what they believe is best. This is because the membership is the group that performs the checks and balances on the Board. There is no Federal or State agency that is going to perform those checks for you.

The Board may just be making a bad decision. However, regardless if the decision is good or bad, the Board has the authority to make that decision. It may be as simple as the board didn't realize that they couldn't ignore that section or it may be that they sought legal advice and the attorney gave them a different interpretation of that section. It's the membership's responsibility to be involved and check on what the board is doing and call them on it. If they (and I said they because it's rare only one member can make changes without assistance from other members) don't challenge the board, then what the board says becomes the way things are done (right, wrong or indifferent).

As I said earlier, the easiest option is to approach the board with your concerns and a proposal that will address both your concerns and the Boards concerns.

The hardest, most expensive and time consuming is taking the Association to court so a third party who has the authority to make changes becomes involved.

What you do is your decision.
You are the one who will have to live with the consequences of your decision good, bad, intended and unintended. Therefore, it doesn't really matter if all of us agree with you or not. The best we can do is try and show you a different perspective to the issue so you have the information available to make an informed decision.

As John and others said, take the time to read and understand the applicable state statutes. Take the time to read and understand your governing documents. Take the time to ask, listen and understand why the board is making the decision they are making (even if you don't agree with it). Then, as I suggested, you will be informed enough to make a proposal to the board that address both your concerns and the Boards.

Hope this helps,

tim

Jeff,

Any Board could make a rule or propose an amendment that is in conflict with a higher document. Heck, as laws change, a rule that wasn't in conflict may now be in conflict with a new law.

The Board will likely "enforce" the rules as they understand it, even if it is conflicting with a higher precedence document.

If the membership allows that enforcement to occur - then so be it.

If the membership challenges the enforcement of that conflicting document and the board fails to see it's error then the Board/Association would likely lose the challenge when the member(s) took the challenge through the courts.

That is what I mean when I say a Board cannot enforce a rule that is in conflict.

However, based on your perspective of my explanation I suppose that a better wording would be:

A board would likely loose a legal challenge to an enforcement of a rule that is in conflict with a higher precedence document.

JeffDb,

OK, I gather from all the posts that there is issue with the way the BoD is going about trying to issue fines. That said and all the procedural stuff aside, the root cause of the matter is people (most likely one or two) who are speeding in your community.

Question: is it a private community? For example, I live in a private gated community. It has a single entry point and is a long oval design with about six cul-de-sacs. The one main road circles around and we have two very nice man made lakes. Long before I moved in, they had issues with quite a few people who lived the farthest away from the entrance. There were lots of speeders in the community and since we were a completely private gated community we had no local law enforcement patrols (like for speeders).

Our governing documents state that if any single member has a complaint about any other single member, that complaint must be in writing to the Board. Once the board gets it, they will go verify the complaint. This is not too cool when it comes to catching a speeder through the grounds as per our document, a member of the board "has" to confirm the violation before a letter of non-compliance or a fine can be levied.

To solve this problem, the HOA punished everyone equally by installing speed bumps throughout the sub-division along the main circular street (no speed bumps on any of the cul-de-sacs). This had a great initial effect. But nowadays this does little to curb the speeding as the people in the same locations farthest from the gate, now just speed between the speed bumps. I have seen them accelerate up to 50mph then break again for the next speed bump.

When mentioned in open meetings, the undercurrent of the under the breadth comments group is that they can do whatever they want because there is no way to enforce it base don how our rules are written.

The entry sign at the gate states that the state vehicle code will be enforced and our Board did take steps a couple of years ago to to have a letter of understanding with the local police that the police are more than welcome to come onto the property to enforce speeding laws. Every now and then they park their little radar trailer on the main street and all the kids love it by seeing how fast they can go on their bikes, scooters and skateboards. It has very little impact on the group of drivers who continue to speed through the community.

In our situation, the rules work against us for this speeding issue. On the bright side, the issue waxes and wanes over the years (as kids grow and move out and new residents replace ones that have moved on).

Maybe speed bumps are an answer to your situation. Maybe inviting the police in to enforce the speed laws is too. Don't know if you need a statement like we have posted that says the CVC will be enforced. It all depends on your documents.

How do you current verify a speeding violation? If it is just community members, who is to say they are trained in estimating speed of a moving car. It is a can of worms which is why my HOA defers from enforcing the rule and invites the police to come in and make a presence.

I think you might be able to avoid all the procedural issues about rule making by suggesting some other options to get the speeders into compliance. (We did get a small break on our HOA liability insurance from what I heard at the time the speed bumps were installed. They also give the community a little more curb appeal for young families with kids.)

BTW - I have seen a number of other gated communities with speed bumps so it looks like it could be a common method to keep speeding down.