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Subject: Renter violations of CCRs and HOA response.
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MichaelJ14
(Alabama)

Posts:9


11/18/2018 8:05 AM  
I’ll try to make this as short as possible.

Over a year ago a home owner listed their home for sale with an agent. Last December, the agent was approached by a couple who want to purchase the home, but would not have their funding complete for another 60-90 days. The home owner allowed this couple to occupy the house early with a closing roughly set about two months later. I suspect this was done with some type of rent-to-own contract.

Half of the couple is retired and the other owns a lawn mowing business. Immediately after move in, the occupant started parking a large open trailer with advertising and loaded with mowing equipment in the driveway each night. The occupant told the VP of the HOA the trailer was not going to remain and he would move to a storage facility close by. After a short period of time it became apparent there were no intentions of relocating the trailer and it has been parked in the driveway nearly every night. Mowers and other equipment are unloaded/loaded and “employees” are seen congregating/assisting. It would seem that by doing so, the occupant is operating a mowing business out of the home which is a violation of the CCRs. This is an ongoing source of contention between the HOA President who feels this does not represent operation of a business and the VP who feels that is does.

In early spring, the occupant had a huge yard sale (he collects furniture, lawn and other items as a side job.... junk basically) and put up signs in the common area and on each corner leading to the property to draw in traffic. Additionally, he told a neighbor that he intended to have a yard sale every Monday.

At this point the HOA approached him with a letter outlining the violations (Nuisance and Unsightly or Unkempt conditions and street parking) since he had been keeping items he collected on his driveway along with the loaded trailer. He was also told that he could not have a yard sale on a weekly basis but could have one each quarter (there is nothing in the CCRs covering yard sales). He cleaned things up for a few weeks, but over the summer started to unload items and let them congregate on his drive way overnight or for a few days. This has gone on all summer and into the fall. The HOA President indicated that he had contacted the occupant via text several times about the driveway and the parking. Each time it would improve slightly for a short time and then revert.

It was recently discovered that the home owner intends to have him evicted (the closing never took place as it appears financing could not be secured). Since then, the occupant has brought trailer loads of junk onto the property and is having “Estate” sales each weekend starting on Thursday and continuing through Sunday afternoon.

Unfortunately, the HOA has not taken any further action against the home owner since the original letter in May. There seems to be hesitance on the part of the HOA to press the topic with the home owner and issue fines accordingly.

The word is the occupant is leaving by the end of the month, but that has not been confirmed by the home owner. As with any eviction, the occupant could easily squat another few months as any legal process plays out.

This event has caused a lot of emotional distress on the immediate neighbors. I’m not sure what could be done at this point, but any recommendations would be welcomed.

Thanks for reading.






Current HOA VP
CathyA3
(Ohio)

Posts:76


11/18/2018 9:21 AM  
Some suggestions and avenues to pursue:

* Nuisance complaints can be subjective, so it's better to find something more objective and provable if it ends up in court.

* Do your CC&Rs have any restrictions about storing commercial vehicles on the property?

* Do your CC&Rs have any restrictions on use of the common elements that this may be violating?

* What about zoning regulations? A weekly yard sale suggests that the person is running a business in a residential area.

* Do your CC&Rs have any language giving individual homeowners the right to sue their neighbors for violations? (This is pretty common in my area.) If so, then the annoyed neighbors can do some of the heavy lifting.

* Does your HOA have an attorney on retainer? If so and if the violation is severe enough, you may want to think about paying for the attorney to write the violation letter. Attorney letters seem to get folks' attention more so than something from the HOA.

* In my area, there are specific procedures that must be followed in order to successfully pursue a violation. Your HOA likely has the same sort of procedures, and they should be followed to the letter. Communication with the homeowner must be in writing, sent via US mail registered and return receipt requested so that the HOA has proof that the homeowner was notified. Also take photos with date and time stamps on them to have objective evidence.

* Be prepared to dig in. Many violations can be cured with one letter, but there are always a few who won't comply until the consequences of their behavior land in their laps. Be prepared to impose consequences. Also be prepared for them to act like you're the bad guy.

Good luck with this. Pursuing violations is never enjoyable, but the community will go downhill if you don't do so.
MelissaP1
(Alabama)

Posts:7762


11/18/2018 9:31 AM  
You have to factor in "Tenant's rights". Which doesn't let owner's evict their tenants at will. There has to be a violation of the lease agreement. It doesn't extend into not paying. One can stop paying rent up towards a year in some rental situations. So it's not that easy to evict a tenant. The tenant can respond to the eviction notice and keep extending it.

I had a tenant it took me 5 months to evict. He stopped paying rent even before that. Plus he worked on motorcycles (in the living room) and had a baby emu in the back yard! Still could not evict him till the process went through. Violating the CC&R's of the HOA doesn't necessarily qualify for reason to evict. If it's NOT written in the lease to obey the CC&R's of the HOA, then those violations can't be used to evict.

Former HOA President
CathyA3
(Ohio)

Posts:76


11/18/2018 9:31 AM  
Something else to check out: your HOA's insurance. If the yard sales are spilling onto common elements, there is a good chance that someone may get hurt and sue the HOA. Would your HOA's policy cover you, or would the claim be rejected because this was a business activity and your policy is for residential type claims only? (Our COA's attorney is adamantly against allowing yard sales for a variety of reasons, but he has seen instances of exactly this sort of thing. In this case, the individual homeowners became jointly, personally liable for a $1 million-plus claim. Ouch.)

Anyway, your HOA should investigate this and decide if it should modify the policy on yard sales. It may also give you an additional reason to pursue the violation.
RoyalP
(South Carolina)

Posts:203


11/18/2018 9:42 AM  
..... This event has caused a lot of emotional distress on the immediate neighbors. .....



Y'all have no clue what 'emotional distress' REALLY means.

Fox-Hole - Mortar fire - Machine guns - IEDs - etc.

Get over yourselves and be happy after they relocate.
MichaelJ14
(Alabama)

Posts:9


11/18/2018 9:52 AM  
One of the problems were facing is the HOA is not united on the response. I'm like your last sentence, "the community will go down hill" if issues are not addressed. I'm not quite sure why the President is not willing to dig in and press the violations. It seems like he does not want to be portrayed as the "bad guy" you reference. Its very frustrating as I moved into a covenant protected community to avoid things like this.

> * Do your CC&Rs have any restrictions about storing commercial vehicles on the property?

Unfortunately not. Trailers are considered a vehicle in the CCRs and allowed on driveways. However, the no business section seems to be straight forward.

"All lots shall be used for single-family residential purposes exclusively. No business or business activity shall be carried on in or upon any Lot at any time except with the written approval of the Board. Leasing of a Lot shall not be considered a business or business activity. However, the Board may permit a Lot to be used for business purposes so long as such business, in the sole discretion of the Board, does not otherwise violate the provisions of the Declaration or By-Laws and so long as: (a) the existence or operation of the business activity is not apparent or detectable by sight, sound or smell from outside the lot or any structures located thereon; (b) the business activity does not involve the regular visitation of or to the lot or any structures located thereon by clients, customers, suppliers or other business invitees or door-to-door solicitation of residents of the Property; and (c) the business is consistent with the residential character of the property and does not constitute a nuisance or a hazardous or offensive use or threaten the safety or security of other residents of the property."

It's obvious when the occupant comes in with flashing lights (ones in the windows, not OE hazard lights) on his truck, backing the trailer into the driveway and unloading mowers, junk etc. with his employees, he is in violation of the no business clause. He has taken a three car garage and basically turned it into storage.

Also, we have had two break ins over the past 5-7 years. The yard sales draw people in from the traffic passing the community who would not normally visit the community. I consider this to be dangerous as you never know the intent of the people who are coming and going. Not to mention the extra traffic is a hazard for the children in the neighborhood.

> * Do your CC&Rs have any restrictions on use of the common elements that this may be violating?

There is language that does not allow signs unless approved by the ACC. No approval has been requested. We are meeting with the ACC today.

> * What about zoning regulations? A weekly yard sale suggests that the person is running a business in a residential area.

Unfortunately, we're just outside the city limits in the county. I'm not sure there is anything preventing this.

* Do your CC&Rs have any language giving individual homeowners the right to sue their neighbors for violations? (This is pretty common in my area.) If so, then the annoyed neighbors can do some of the heavy lifting.

I don't see anything in the CCRs with this specific language.

* Does your HOA have an attorney on retainer? If so and if the violation is severe enough, you may want to think about paying for the attorney to write the violation letter. Attorney letters seem to get folks' attention more so than something from the HOA.

We don't have one on retainer, but I can contact the attorney who wrote the CCRs for guidance. I was considering this action before posting here. Again, I go back to the united front thing... there are differences of opinion on the board. I'm the VP and live in the same cul-de-sac as the occupant, where as the President does not. It seems its an out of sight, out of mind thing with him for the most part. Extremely frustrating.

* Be prepared to dig in. Many violations can be cured with one letter, but there are always a few who won't comply until the consequences of their behavior land in their laps. Be prepared to impose consequences. Also be prepared for them to act like you're the bad guy.

If it comes to it, I'll hire the attorney myself. I'm not going to back down, but I'm in a holding pattern to see if the occupant vacates the property within the next two weeks.

Current HOA VP
MichaelJ14
(Alabama)

Posts:9


11/18/2018 10:00 AM  
Posted By RoyalP on 11/18/2018 9:42 AM
..... This event has caused a lot of emotional distress on the immediate neighbors. .....



Y'all have no clue what 'emotional distress' REALLY means.

Fox-Hole - Mortar fire - Machine guns - IEDs - etc.

Get over yourselves and be happy after they relocate.





Per this site:

We have only a few other rules:

(1) Post any relevant topic you like, but please keep it clean, helpful, positive and friendly.



Current HOA VP
MichaelJ14
(Alabama)

Posts:9


11/18/2018 10:00 AM  
Posted By RoyalP on 11/18/2018 9:42 AM
..... This event has caused a lot of emotional distress on the immediate neighbors. .....



Y'all have no clue what 'emotional distress' REALLY means.

Fox-Hole - Mortar fire - Machine guns - IEDs - etc.

Get over yourselves and be happy after they relocate.





Per this site:

We have only a few other rules:

(1) Post any relevant topic you like, but please keep it clean, helpful, positive and friendly.



Current HOA VP
MelissaP1
(Alabama)

Posts:7762


11/18/2018 10:03 AM  
Before you go to a lawyer. (Suing your HOA is suing yourself and your neighbors). It's best to find out what your HOA can actually do to enforce violations. #1 they have to go after the owner and NOT the renter. The renter is NOT a member of the HOA. So whatever punishment is put on the owner. That may be fines or limiting access to amenities.

Your HOA may not have the right to fine. If it does, then it has to have a 'Fining schedule" well defined and given to everyone. It has to list things like "Garbage out after 9 pm is $25 a day". It can't just be a random amount/violation grabbed out of the air.


Our HOA we could clean up the violation and send the owner the bill. If they did not pay the bill, we could lien them for that bill. Of course the HOA had to have the money to pay for the clean up. Which isn't always there. Plus there are lots of entering the property issues.


So before you go "My HOA does nothing". Make sure there is something they can do and what.

Former HOA President
RoyalP
(South Carolina)

Posts:203


11/18/2018 10:05 AM  
it is clean - no 'foul' language was used

it is helpful - it restored 'perspective'

it is friendly - friends tell friends 'like they see it', and do not dispense platitudes

it is positive - it is positively and absolutely correct


however


it was NOT what the OP wanted to hear
MichaelJ14
(Alabama)

Posts:9


11/18/2018 10:07 AM  
Posted By MelissaP1 on 11/18/2018 10:03 AM
Before you go to a lawyer. (Suing your HOA is suing yourself and your neighbors). It's best to find out what your HOA can actually do to enforce violations. #1 they have to go after the owner and NOT the renter. The renter is NOT a member of the HOA. So whatever punishment is put on the owner. That may be fines or limiting access to amenities.

Your HOA may not have the right to fine. If it does, then it has to have a 'Fining schedule" well defined and given to everyone. It has to list things like "Garbage out after 9 pm is $25 a day". It can't just be a random amount/violation grabbed out of the air.


Our HOA we could clean up the violation and send the owner the bill. If they did not pay the bill, we could lien them for that bill. Of course the HOA had to have the money to pay for the clean up. Which isn't always there. Plus there are lots of entering the property issues.


So before you go "My HOA does nothing". Make sure there is something they can do and what.




Hi Melissa,

Very helpful information here. We don't have a "Fining schedule" as you mentioned. I'm going to add this to our open business.

Thank you for your insight.

Current HOA VP
RoyalP
(South Carolina)

Posts:203


11/18/2018 10:10 AM  
said fining ability and schedule must be in the Covenants and Restrictions themselves

good luck amending them

KerryL1
(California)

Posts:5950


11/18/2018 10:18 AM  
As advised to you many times in the past, MichaelB, visit davis-stirling.com and look up fines for requirements in CA. The schedule need NOT be in your CC&Rs (Covenants; restrictions; declaration), but you do need one. Ours is in our rules. CA requires that the schedule be sent out every year to owners with the new budget and reserves study.

How many are on your board? Can't a majority of you vote to enforce the rules? Or does every director kowtow to the president?
MichaelJ14
(Alabama)

Posts:9


11/18/2018 10:25 AM  
Posted By KerryL1 on 11/18/2018 10:18 AM
As advised to you many times in the past, MichaelB, visit davis-stirling.com and look up fines for requirements in CA. The schedule need NOT be in your CC&Rs (Covenants; restrictions; declaration), but you do need one. Ours is in our rules. CA requires that the schedule be sent out every year to owners with the new budget and reserves study.

How many are on your board? Can't a majority of you vote to enforce the rules? Or does every director kowtow to the president?





Not sure where "As advised to you many times in the past, MichaelB" pertains to? I have only posted here a couple of times and never on a topic such as this.

Thanks for the URL and the comments regarding the schedule.

There are four people on the board. I agree, it should be a majority decision.

Current HOA VP
KerryL1
(California)

Posts:5950


11/18/2018 11:04 AM  
Sorry, I mixed you up with a Michael in CA. Ignore my remarks except about the prez. Why are there 4 on your board? Usually, there's an odd number.

I don't know if a fining schedule is required in AL. If Melissa says it is, she should cite state statute for you.
JenniferG11
(Texas)

Posts:530


11/19/2018 1:50 AM  
What can they even do? Keep punishing the homeowner who is already evicting this guy? The homeowner can't force the legal process to go any faster than it does.
MelissaP1
(Alabama)

Posts:7762


11/19/2018 4:41 AM  
I am NOT a lawyer nor pretend to be. So no I will NOT be posting some kind of legal quote I got off the internet. That to me is bad advice because I am not licensed to practice translation of those laws.

Anyways. A Fining schedule is nothing more than a list of what is considered a violation and the rate of fine for violation. A HOA can't just randomly pull it out of the air what it enforces because someone doesn't like something. It should be defined and identified. A fining schedule does that. Have one of those in place and understood, assists when the HOA issues out fines.

Otherwise, without a defined "list/schedule" it's hard to not claim selective enforcement. The HOA has proof that it's established that leaving a trash can after 9 pm results in a $25 a day fine. Not all HOA's have the right to enforce fines. If they do, it lacks definition.

We never did the fine thing. It isn't that enforceable. You can't lien or foreclose for fines directly. That is why we did the pay for fixing the violation and sending the bill to the member. That bill is subjective to lien but not foreclosure. Only non-payment of dues is the basis of liens/foreclosures.

Former HOA President
JohnC46
(South Carolina)

Posts:7865


11/19/2018 4:57 AM  
Posted By RoyalP on 11/18/2018 10:10 AM
said fining ability and schedule must be in the Covenants and Restrictions themselves

good luck amending them





Our lawyer (in SC) informed us the ability to fine must be in the Covenants but not the fining schedule. He is also the Senior Partner in one of the largest HOA law firms in SC. He knows of what he speaks.
MelissaP1
(Alabama)

Posts:7762


11/19/2018 5:10 AM  
I am NOT saying that the ability to fine is in the Schedule. The power to fine is in the CC&R's. The DEFINITION of what is fined and how much is in the Fining schedule. Having the statement "We can fine" doesn't define the scope, definition, or rate.

So don't confuse the right to fine being in the fining schedule. The schedule is more of an addendum to the CC&R's with the definition.

Former HOA President
JenniferG11
(Texas)

Posts:530


11/19/2018 6:34 AM  
Posted By JohnC46 on 11/19/2018 4:57 AM
Posted By RoyalP on 11/18/2018 10:10 AM
said fining ability and schedule must be in the Covenants and Restrictions themselves

good luck amending them





Our lawyer (in SC) informed us the ability to fine must be in the Covenants but not the fining schedule. He is also the Senior Partner in one of the largest HOA law firms in SC. He knows of what he speaks.




No fining schedule in our docs. It just says we can fine up to $100 for violations.
JenniferG11
(Texas)

Posts:530


11/19/2018 6:50 AM  
Posted By MelissaP1 on 11/19/2018 4:41 AM
I am NOT a lawyer nor pretend to be. So no I will NOT be posting some kind of legal quote I got off the internet. That to me is bad advice because I am not licensed to practice translation of those laws.

Anyways. A Fining schedule is nothing more than a list of what is considered a violation and the rate of fine for violation. A HOA can't just randomly pull it out of the air what it enforces because someone doesn't like something. It should be defined and identified. A fining schedule does that. Have one of those in place and understood, assists when the HOA issues out fines.

Otherwise, without a defined "list/schedule" it's hard to not claim selective enforcement. The HOA has proof that it's established that leaving a trash can after 9 pm results in a $25 a day fine. Not all HOA's have the right to enforce fines. If they do, it lacks definition.

We never did the fine thing. It isn't that enforceable. You can't lien or foreclose for fines directly. That is why we did the pay for fixing the violation and sending the bill to the member. That bill is subjective to lien but not foreclosure. Only non-payment of dues is the basis of liens/foreclosures.




So for trash left out you'd charge $25 to remove it rather than a $25 fine for the homeowner not doing so?
MelissaP1
(Alabama)

Posts:7762


11/19/2018 3:05 PM  
Exactly Jennifer. We tell them if we clean it up, it's at OUR rate. So if we pay someone $25 to pick up the trash, then we send the owner that bill. Don't pay it then we can lien you for it. (Some HOA's may choose to sue). That means that your now having to pay for the filing of the lien AND the $25 cleanup fee. Which is stronger than a fine. A lien you can't sell the home till you pay up. A fine or lawsuit you can sell and move without paying a dime. Which one do you choose? Fine or charge?

Former HOA President
RoyalP
(South Carolina)

Posts:203


11/19/2018 6:20 PM  
Posted By JohnC46 on 11/19/2018 4:57 AM
Posted By RoyalP on 11/18/2018 10:10 AM
said fining ability and schedule must be in the Covenants and Restrictions themselves

good luck amending them





Our lawyer (in SC) informed us the ability to fine must be in the Covenants but not the fining schedule. He is also the Senior Partner in one of the largest HOA law firms in SC. He knows of what he speaks.




correct for SC

? Alabama ?
KerryL1
(California)

Posts:5950


11/19/2018 6:24 PM  
Yes, we need to know about Alabama, but Melissa won't look up their statutes (if any?). And she doesn't know them. Wait, they must have something....???
MelissaP1
(Alabama)

Posts:7762


11/19/2018 6:25 PM  
Google it yourself Kerry. I don't play lawyer...

Former HOA President
RoyalP
(South Carolina)

Posts:203


11/19/2018 6:54 PM  
ALABAMA
ArtL1
(Florida)

Posts:125


11/20/2018 4:00 PM  
Check city/county regulations. It may be illegal to have a garage/yard/estate sale more than a certain frequency.

Where I am, you're technically supposed to purchase a garage sale permit from the city (for $1), and we're only permitted (by law) to have 2 garage sales per year per street address.

I've never heard of the police or code enforcement cruising garage sales and asking to see permits, but I suspect the reason for the permits is the issue you're having. It is a crime (here) to have more than 2 per year or to have one without a permit...so someone abusing that can be issued a citation and fined by the city.
LetA
(Nevada)

Posts:550


11/21/2018 11:02 AM  
Posted By ArtL1 on 11/20/2018 4:00 PM
Check city/county regulations. It may be illegal to have a garage/yard/estate sale more than a certain frequency.

Where I am, you're technically supposed to purchase a garage sale permit from the city (for $1), and we're only permitted (by law) to have 2 garage sales per year per street address.

I've never heard of the police or code enforcement cruising garage sales and asking to see permits, but I suspect the reason for the permits is the issue you're having. It is a crime (here) to have more than 2 per year or to have one without a permit...so someone abusing that can be issued a citation and fined by the city.





You've never been to Parma, Ohio. Yes, you need a permit, get caught having a garage. yard sale without a permit and it is a steep fine; AND yes, they have an active code enforcer that drives the city every day.
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