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Subject: Enforcing violations to regulations
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GloriaR
(Florida)

Posts:5


06/07/2007 9:20 AM  
Our homeowner's association in Florida is going through a problem with residents who are refusing to adhere to the regulations. Apart from sending letters, what can we do about this? No-where in our CC&R do we have the right to levy fines for noncompliance. And, we cannot get enough votes to change the rules. Is there any other way in the legal system to enforce the rules?
PaulM
(Pennsylvania)

Posts:1347


06/07/2007 10:21 AM  
GloriaR:
What regulations are the residents violating?

- Are they insisting on violating the LEGAL COVENANT DOCUMENTS which 'came with' the purchase of your unit? What percentage of residents does your covenant specify is required for residents to change the covenant?

- or, are the residents violating the Rules & Regulations instituted by the Board? These are not required to be officially recorded, can be added to or changed at any time and do not require resident approval.

There are covenant regulations and there are 'rules'. If your legal covenant documents do not allow for fines, how can a Board expect residents to adhere to anything? Some would say ...but its just the right thing to do...to follow the guidelines/rules; but we all know people who love to rebel.

Does your community charge a manditory assessment fee to cover certain maintenance? or is the assessment voluntary? This is an important issue to address.
GloriaM
(North Carolina)

Posts:829


06/07/2007 11:07 AM  
Gloria:

Check with your state Planned Community Act, most states allow an association to bring an Owner to a mediation hearing and then does allow for fines to be imposed.
MicheleD
(Kentucky)

Posts:4491


06/07/2007 12:33 PM  
We turn over the tough ones to an attorney who then makes a request for compliance. If the offender fails after the attorney makes the request, then he files a complaint requesting the court to demand compliance. At that point, if compliance is still not made then they are found in contempt of court.

We don't have an option to fine either. But we do have wording in our documents that states if we have to resort to legal action to enforce regulations, the offender is to pay court costs as well.

Good luck.
GloriaR
(Florida)

Posts:5


06/07/2007 2:05 PM  
Our CC&R's state that any change to the outside appearance of a property has to be approved by the Architectural Design Committee. Color painting homes is to be muted, subdued, or earthtoned. We have a resident or two that have NOT submitted an application to change the color of their home, and chose bright yellow that has offended their neighbors. They are refusing to follow the rules and are ignoring our communications. In other words, they are defying the CC&Rs and feel we have "no teeth" to do anything about it.
MelissaP1
(Alabama)

Posts:8711


06/07/2007 2:34 PM  
There is an option here. It's not going to be a favorite one but it's an option. The HOA can PAY to have the house repainted to the approved colors and send the bill to the homeowner. If the homeowner refuses to pay the bill, the HOA can then LIEN the homeowner for the money. However, it may be sufficient enough to just threaten to do this than go through the whole process. The homeowner may comply without getting this "forceful". This option should be in your CC&R's.

This is the ONLY other area where a HOA can place a lien on a homeowner. The first is non-payment of dues/assessments. If the HOA board votes to repaint the house, they are entitled to recoup their costs in doing so. This goes for other structures as well. If someone builds an unapproved fence or the fence is in bad/dangerous condition, the HOA can remove it at the owner's cost.

I've always used this as an example when dealing with HOA's. What if a resident puts up an "outhouse" in the front yard? What can the HOA do? The members have to complain to the board about it. The board then votes and agrees it's a violation. The board then gives notice (maybe through their MC) to the owner. The letter informs them they have a violation and need to correct it within 10 days. If they do NOT remove the violation, the HOA will pay (at whatever bid amount) someone to remove it, and charge the owner for it's removal. If the owner refuses to pay the bill, they will be liened the costs.

In this case the lien is different than a fine. Fines can't be used for liens/foreclosures. It's the fact the HOA suffered monetary "damages" that a lien can be placed in this scenerio. Avoid small claims court. The owner can sell their property with a court judgement. A lien doesn't allow the owner to sell and move.

Former HOA President
GloriaR
(Florida)

Posts:5


06/07/2007 3:44 PM  
You are correct, this option is in our CC&R's. However, we were informed by a lawyer that the homeowner can call the police because we are trespassing on his property and we could be arrested. Under those circumstances, we could not get anyone to repaint the house. This is where we become "toothless". But there HAS to be a way!
RogerB
(Colorado)

Posts:5067


06/07/2007 4:40 PM  
Melissa, it is a bad idea to enter onto a homeowner's property and do repairs unless either the owner approves or the HOA first gets a court order. Even with a court order I would have a sherrif's duputy escort the contractor and me onto the property.
HaroldS1
(Arizona)

Posts:314


06/07/2007 5:55 PM  
Roger is absolutely correct. Even the police (except for an emergency) need a court order to enter someone's property. Repainting a house is not an emergency. Why do you think an HOA has that right to enter other's property at will? Most reliable contractors will not take such a job, and if there is any damage whatsoever to the property, you and the contractor can be sued (a knowledgeable contractor will probably make your HOA sign a waiver even if there is a court order.) You should find another way to make them comply. Harold
MicheleD
(Kentucky)

Posts:4491


06/07/2007 6:39 PM  
I dunno, Harold, our CC&Rs allow us to enter the property in some instances without permission:

(b) From and after the date construction of a single family residence on a lot is started, it shall be the duty of each lot owner to keep the grass on the lot properly cut, to keep the lot free from weeds and trash, and to keep it otherwise neat and attractive in appearance. Should any owner fail to do so, then Developer may take such action as it deems appropriate, including mowing in order to make the lot neat and attractive, and the owner shall, immediately upon demand, reimburse Developer or other performing party for all expense incurred in so doing, together with allowable statutory interest, and Developer shall have a lien on that lot and the improvements thereon to secure the repayment of such amounts. Such lien shall be subordinate to any first mortgage thereon.


Plus, when we have won a judgment against an illegal fence, we were allowed by court order to enter the property to remove if resident didn't comply by a certain date. On another case, we were able to enter the premises with a sheriff to remove dogs.

The thing is, your CC&Rs don't have teeth unless you use the resources available to you to enforce them. One of those resources is a court order. The way to get a court order is to take the resident to court with a complaint, and NOT through Small Claims court.

We have been fortunate in that in 10 years we've only had to take 2 cases to actual trial. We won on both. In other words, the judge found that our CC&Rs were a contract with the resident and when they were violated he was ordered to uphold the contract and bring his property into compliance or be found in contempt of court, at which time the court would assess appropriate fine, NOT for the violation itself, but for contempt of court, daily fine if need be.

We have had to draw up about 6 complaints over various issues, commercial vehicle parking, unapproved construction, on-street parking, illegal fence, above-ground swimming pool, etc.

Our attorney would draft the complaint, mail it to the resident with a cover letter explaining that this is the complaint that will be filed in XXX days if resident does not comply or respond to the attorney with a timeline / plan for compliance.

All six threatened to sue in return. We said, Okay, whatever you feel you need to do. They usually cite, through their attorney, that they will claim selective enforcement. In which case our attorney responds back with a court date and comments to the effect that we will provide all records of consistent enforcement and let's take this to trial. In all but those 2 cases I mentioned, the resident backed down and voluntarily complied.

Now that the residents know that we will defend the documents, we have rarely had to get past two warning letters.
HaroldS1
(Arizona)

Posts:314


06/07/2007 10:48 PM  
Well Michele I'm a bit confused. The quote from your document states the DEVELOPER..... How does that morph into the HOA....???? Secondly what I stated was entering people's property at will. In your instances you had a court order. Which I have no quarrel with. So I'm still not sure what you are trying to prove. Harold
MicheleD
(Kentucky)

Posts:4491


06/07/2007 11:11 PM  
Because there is another section of the documents that transfers any actions by DEVELOPER to whomever he assigns to, such as the residents association when it's turned over. Most CC&Rs that have DEVELOPER in them have that clause as well.

I'm not trying to "prove" anything. You are the one who brought up the "at will" modifiers. I didn't think the original poster was talking about going onto properties at will, only to enforce certain restrictions. I was simply indicating where there are SOME CC&Rs that provide for that entrance.

The instances I brought up WERE under court orders, but I also indicated where the CC&Rs show that we can enter properties on occasions to enforce some things, for example, the mowing and lawn maintenance.

Jadedone4
(Virginia)

Posts:495


06/08/2007 4:02 AM  
... can, will, shall...

...would, could, should....

We all have read those words a time or two in our governing documents. Just because a set of "powers" are issued as valid to an HOA, under the governing documents, does NOT mean that you MUST use them.

It is my opinion that absent a bona fide "emergency" that no HOA should ever enter, or enter with a contractor, onto a member's property. There are just so many exposures to liability that the HOA is inviting to occur. Owner has a gun, owner claims HOA, or HOA's contractor scratched his shiney new BMW, owner states you killed his 100year old bonsai tree...

There is just too much that can go wrong in doing this, that I just do not see the benefits of justifying that they "out-weigh" the desired end. Even with a court order you are still exposing your HOA to liabilities, if the owner states any of the above. While it might not be optimal to have an owner with a bright yellow house, or weeds similar to Animal Planet, or even a wrought iron fence with razor wire - the methods for addressing should not further expose the HOA to any liability. You "must" (another one of those words), consider that if the owner has ignored your requests up to this point, he/she is willing to fight the HOA on the issue further. I would engage the owner on the HOA's terms and a level playing field - entering a owner's property only seeks to put them at an advantage. Is there really a difference between escalation of fines to a dollar amount to trigger liens, or performing the work at risk to the HOA/contractor, then seeking re-imbursement from owner, who will undoubtedly just ignore you again and again (forcing the issue to a "lien" situation anyway)?
BradD2
(Florida)

Posts:418


06/08/2007 4:12 AM  
Gloria, do a search on the net for Florida Statute 720. It offers a mediation alternative that any Association or Homeowner can use to resolve disputes. Most of the time it is used against Associations but it is very clear that it works both ways. I think it is section 305 that you need.
MelissaP1
(Alabama)

Posts:8711


06/08/2007 4:35 AM  
I didn't say I was a supporter of this procedure. It just exists and is an option if chosen to pursue.
In our situation in our HOA, no court order would be needed to do any work on the property. Any member can enter the "common area" anytime they want. In our HOA, the owner owns the home and the "lot" the house sits on. Anything OUTSIDE that "lot" is considered "common property" and controlled by the HOA. The HOA of course is made up of all the homeowners. So our HOA does have the right to enter your property "at will" because it's considered under our control. We also are responsible for the outside appearances of homes so this also allows us to enforce the rules on an violating owner.
Mind you, we have a member who painted their house "loud torquise". Our approved colors are muted pastels! So you can imagine how this house "fits" in. The original ACC member confronted the owner about the paint color. The ACC member got cussed out and promptly quit the ACC. He was the ONLY member of the ACC!! When I finally got to be president, we had been without a ACC for several years. Too long to come back and enforce the owner to repaint the home. Althought it was quite the "eye sore" and potential buyers pointed it out often. (not favorably). Unfornately, I never got to use any options against this owner and it continues to be a problem. New people try to insist now they can paint their homes any color since that one exists. It's better to nip this in the bud ASAP. Otherwise you have a torquise house and no excuse to disaprove.
I have another long story about this situation but I will shorten it. It involves a crooked ex-president and his own painting business. Somehow he knew about this rule and tried to get me to use it to his advantage. Pretty much getting paid from both ends. I didn't fall for it but our current board is doing this method to the owners now. The only problem is they don't have the money to really enforce this rule. Make sure your HOA can afford to do this and do it equally before pursuing.
There is no miracle cure. Your legal options are the only options you have. You have to choose to pursue them even though they aren't that appetizing.

Former HOA President
MicheleD
(Kentucky)

Posts:4491


06/08/2007 4:47 AM  
I agree, Melissa, I didn't say I was an advocate of going onto the property, just that the option does exist.

We could have gone on in the fence instance, prior to a lawsuit, but opted to have the court order. And yes, a court order does protect you and the vendor, especially if you have a sheriff with you.

But that's an extreme situation.

When it comes to grass mowing etc, even though we CAN go on if we opt to, we generally don't. We go through the same process as all other violations.

The only exception to that is when the homeowner has the house for sale and is already moved out. In those cases, if the lawn is getting out of control, we contact the realtor on the sign and notify him of the maintenance issue. If he fixes it, we move on. If he doesn't we ask if we can send our service on and bill him. They usually agree at that point. If they don't then we let them know that we will be mowing and will bill and file lien if not paid. That usually prompts them to take care of it because they want the title clear for the sale.

As a matter of practicality, we don't enter the property except in the extreme circumstance of a court order or the above lawn scenario.
HaroldS1
(Arizona)

Posts:314


06/08/2007 4:11 PM  
"And yes, a court order does protect you and the vendor, especially if you have a sheriff with you."
From what?
What if the owner placed many valuable items up close and against the house that will need to be moved by you or your contractor before you can paint? You still better not scratch that BMW or harm that 100 year old bonsai plant or get paint on anything not supposed to be painted. Why would you need such strife? Harold

MicheleD
(Kentucky)

Posts:4491


06/08/2007 5:14 PM  

what if? And what if he had a valuable Ming vase that he kept on a shelf on the fence??? And we dropped it, and then we yanked the ladder out of the way and put it through his plateglass window, and the shattered glass fell on his purebred, three-legged Siamese cat and the cat cut his paw and jumped up on the grand piano with the ivory keys and got blood all over the keys, and then the cat knocked over the OTHER Ming vase full of flowers and water on top of his big screen TV, which shorted it out and caused a fire in the electrical system . . .

I suppose we could just freeze ourselves into doing nothing because of all the "what if"s we can dream up. One would never leave the house.

If he's got a BMW then we better not scratch it I would imagine. Guess we'll just have to be careful and rely on the sheriff as an eye-witness to whatever dangers lurk from our floundering about.


Seriously, if he's ticked enough he could "claim" anything, I suppose, but that's no reason for us not to enforce.

You asked me earlier what I was trying to "prove," so I guess I'll ask you the same question in return.

I'll be point blank about it and let you know that I feel as though you are being hostile towards me simply because I offered a different, yet viable, perspective.

I'm not trying to be a smart alec, but I really do sense hostility in your replies to me. If I am wrong, then I apologize.

I will say again, as a rule, we don't enter homeowners' properties without either a court order (as we had in just TWO instances in over 10 years) OR when there is NO resident living in the home anymore and we have obtained permission from either the realtor or the bank on behalf of the resident.

I simply provided the information that OUR deed restrictions allow for us to do so. Doesn't mean we necessarily have to and have ONLY done it on the instances I mentioned.
HaroldS1
(Arizona)

Posts:314


06/08/2007 6:44 PM  
Not picking on you Michele. The point is: not spending member's money recklessly incurring law suits. If you noticed Roger & other posters warned about entering member's property, not just me. So why are you picking on me? Actually I don't care what you do any longer. Do what you want. Harold
MicheleD
(Kentucky)

Posts:4491


06/08/2007 7:11 PM  
I'm not picking on you, Harold. Honestly, I'm not. and I said if I was wrong then I apologize, but you singled me out by name in your response earlier, the others did not, so I sensed some tension there.

I would hardly refer to using the full resources available per our deed restrictions, including lawsuits when necessary, as a reckless spending of money.

In 10 years we have only had to actually file 2 lawsuits. We won both. The residents who lost had to pay court costs and attorney's fees, AND the costs incurred for us to bring the properties into compliance. Neither lawsuit was reckless and we certainly don't advocate "reckless" lawsuits either.

But when the CC&Rs allow for the option, and compliance cannot be gained through any other recourse, it's a very suitable and viable option.

Lawsuits, at least for us, are a last resort.
KevinK5


Posts:0


06/09/2007 5:58 PM  
Gloria,
Brad's mediation idea really does work. I attended a conference here in Orlando where lawyers explained the process. They cited several instances where HOAs filed for mediation to resolve a dispute and the homeowner ended up complying with the rules. We started to use it here in our HOA but just the threat of going to mediation caused thehomeowners to comply with the C&Rs.
When you go to mediation the HOA and the homeowner split the costs. It is usually cheaper for a homeowner to fix the problem than go to court.
Kevin
MicheleD
(Kentucky)

Posts:4491


06/09/2007 6:02 PM  
Another perfectly viable and excellent course to pursue. Thanks for mentioning it, Kevin.
GloriaR
(Florida)

Posts:5


06/09/2007 6:53 PM  
Thanks Kevin, I will look into this option. It sounds like the course for us to try. Gloria
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Forums > Homeowner Association > HOA Discussions > Enforcing violations to regulations



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