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Subject: New York State
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TaraE
(New York)

Posts:32


01/23/2019 8:28 AM  
I was told by our Property Management company that we can give Homeowners violations, but they do not have to pay it. There is nothing that we can do. It is in our By-laws.

I have two questions to that:

1) Is that accurate? People can not follow the Rules and Regulations and not have to be held accountable?
2) How do you uphold your by-laws then? Is it just a piece of garbage?

Thanks
Tara

TaraE
(New York)

Posts:32


01/23/2019 8:28 AM  
I should add that this is a Townhouse condo community
AugustinD


Posts:1576


01/23/2019 8:50 AM  
Hi Tara, you have to read your Bylaws and CC&Rs. If you can do a keyword search for words like "enforce" "enforcement" "powers" or similar, this might turn up something quickly. Quote here on the forum any phrases that seem to suggest fines may or may not be imposed, and hoatalk participants can then give their impressions.
DouglasK1
(Florida)

Posts:1393


01/23/2019 9:00 AM  
As Augustin said, your governing docs are a good place to start regarding your enforcement ability. State law might also come into play. If you doubt the PM's advice, then getting a lawyer's opinion based on your docs and state law would be a good next step. They can let you know if you can fine, and if you can lien or even possibly even foreclose for unpaid fines.

Escaped former treasurer and director of a self managed association.
DouglasK1
(Florida)

Posts:1393


01/23/2019 9:03 AM  
I'll add that bylaws and CCR's can both be amended following the proper procedure, so if the limitations are in those docs, there is a possible solution.

Escaped former treasurer and director of a self managed association.
CjC


Posts:174


01/23/2019 9:38 AM  
Our documents do not give us the right to fine, but it DOES give us the right to fix what is wrong on your property and then lien you for that charge. Sometimes there are workarounds.
TaraE
(New York)

Posts:32


01/23/2019 10:13 AM  
Our By-laws gives us the right to fine up to $250 for one violation. Nothing says "enforcement" it just says that we can fine no more than $250 per violation, but the first violation is a warning, second is a $50 fine, third is $100 etc.

Our by-laws even reference our rules and regulations that also explains in more details of the violations per parking and noise etc.

I contacted my lawyer who said to follow the PM. But I think cause he didn't want to get involved as he is a real estate attorney. If I go through the Community Lawyer he will charge us and the board member that is friends with this neighbor will cause bigger problems.

How do I find out NYS laws on this via google and know that it is accurate that I can present to the PM to revoke his original comment at our next meeting?

I appreciate everyone's comments-thank you

Thanks
Tara
SheliaH
(Indiana)

Posts:2464


01/23/2019 10:42 AM  
You could start by Googling New York homeowner association laws and then scroll through to see what it says.

As far as talking to your attorney, I assume this wasn't the homeowner association's attorney. If it was and you're on the board, you should be talking to him or her about enforcement.

As for the property manager's comments, I suspect he/she said that because many HOA boards don't always have the stones to enforce the rules. It's true that without enforcement, rules don't mean much, but people have to be willing to follow them, and when they don't, it's ultimately up to the board to drop the hammer.
You know how we humans are - we scream for rules about this and that, but then scream bloody murder when someone has the gall to try and enforce them against US (because rules apply to everyone else EXCEPT us!)

Everyone in the community - the HOA board members and regular homeowners are all neighbors, and as you know it's not always easy to go to your neighbor and tell him/her, the music's too loud, the dog keeps pooing on your lawn, his failure to keep the trash can lid closed is creating a plague of flies, and everything else.
You also watch the news and have seen some of the more tragic things that happen when neighbors get into conflict. that's why some people would prefer the property manager do the dirty work, but the property manager takes his/her direction from the Board. Once the property manager sends the violation letters and advises the homeowner of the fine, what will YOU when he/she/they tell you to kick rocks?

So your real beef is with the board - if you're a member, time for all of you to have a conversation about rule enforcement. Some people won't violate the rules, others will fix it once they're told their in violation and the rest will push back, scream about "this is my house dagnabit - you're not the boss of me!" What will you do about that group (ans yes, court action may need to be an option)? Make up your minds how you will do this, educate the homeowners about how and when this will happen, begin by targeting the most obnoxious problems - and stand your ground when people resist. Our HOA attorney told us that a renewed interest in enforcement is almost always hard the first few years, but when people see that you mean business, most will fall in line. Have fun!

JohnC46
(South Carolina)

Posts:8267


01/23/2019 10:42 AM  
In many states all the HOA can do is file a lien based on unpaid fines and when the unit is sold, the lien must be satisfied. Liens can also be contested in court.

In most states one cannot foreclose based on unpaid fines. I believe in some states dues money can be applied to fines thus leaving dues not paid and the unit can be foreclosed on for unpaid dues. Our attorney says we cannot do such in SC.

Bottom line is in most states it is impossible to collect fines unless via a lien when the property is sold.

We view fines as tool to get the violation cured. We do not want the money. We want the violation cured. Letters from the association and MC often mean little. A letter from our attorney threatening a lien gets most people's attention.



GeorgeS21
(Florida)

Posts:1208


01/23/2019 10:46 AM  
Please fully review your CCRs, Bylaws and state statutes governing HOAs prior to refining your question.

Starting with a perjorative term like “garbage” is not as helpful as researching your issues.
KerryL1
(California)

Posts:6350


01/23/2019 11:33 AM  
Do your CC&Rs or some other governing document give the board the authority to withhold amenity privileges? This works well with us, but the board odes have to decide to do it with the violator.

We also do fine, but as with JohnC's case. we via our PM, give written warnings and what we really want is the violation cured. A warning or "courtesy" letters often are sufficient.

Have your PM show you where some official doc--your HOA's or state statutes don't permit you to fine owners. In CA, due process must be followed and the alleged violator must have the chance to present their side of the story to the board at a private hearing.
TaraE
(New York)

Posts:32


01/23/2019 11:48 AM  
Ok, so I get using the term "garbage" seems harsh, but I am in a position where my community is small and gets bullied by a group of people. One is a sociopath - really I am not just being mean. He is on our Board. I am also on the Board. I got on this Board because of the bulling going on with my family and other community members. We have made a huge difference. One of these horrible people resigned from the Board. But the sociopath remains and reports back to his minions. one of the minions, is my neighbor- who is performing all of the violations. Now that the PM has announced in front of this Board member that we can not enforce the violations for the community- this board member will go back to my neighbor and have them release themselves on my family.

I have a litigation attorney waiting in the wings when/if that happens. But, the reason why I use the By-laws as garbage is because every time the four of us try to enforce the by-laws the PM says things like above. But it is a double edge sword because this Board member is trying to lay the violations via by-laws to Bully another neighbor. See several years ago, when these minions were the majority vote they put all of these fines on this one owner who is bi-polar.They pushed and pushed her. It was horrible. She hasn't paid the fines. But now, about four years later this Board member is pushing to get more aggressive on her. The problem is that we have an election in a couple of months and this group of bullies are trying to make us look bad. So if we are not careful what we say and do they are posting things on FB and talking badly about us. On things that have to be confidential. The one that resigned purposely is doing this. It is really a bad situation. I have been attacked verbally in the parking lot and another board member was attacked via phone. But the PM (which is new because the old one was working personally with this group) seems to not want to get involved or doesn't know how. We four Board members keep asking for direction and we are told that we basically cannot do anything.

We cannot go to the Board attorney because then we will have to pay him and that will go on to the books and this sociopath will tell the community that we are spending the community's money neglectfully.
SheliaH
(Indiana)

Posts:2464


01/23/2019 12:49 PM  
What is that quote from Eleanor Roosevelt – “no one can take advantage of you without your consent?” Same principle here.

As I said earlier, the BOARD, not the property manager, should be making the decisions regarding rules enforcement, so don’t bring him/her into this for now. This “sociopath” board member may be creating a lot of drama, but he’s only ONE person – the rest of you need to grow a spine and do what you need to do in the interest of the entire community. For that matter, it appears everyone else in your community needs to grow a pair, as it were, and vote the sociopath off or recall him.

If this board member wants to go to his minions who can’t or won’t think for themselves, let him. If somebody breaks the rules, do your job – investigate and then follow your policy. Do it quickly and consistently and if this guy or anyone else wants to duke it out in court, bring it on. You put your case together, see what the other side comes up with and let the judge decide who wins. Perhaps the “minions” do what they do because they’re afraid – if they see someone stand up to him they may switch sides and then the man will be standing by his own danged self.

When it comes to fines, it’s ok to check state law to see what it says about HOA boards and fining. You have an association attorney to assist you with questions like this, so stop wringing your hands and make the call. The attorney can also help you draft a rules enforcement policy, which should address things like receiving and reviewing complaints, when violation letters will be sent, appeal rights, and of course fines (how much, when they’re due and what happens if the homeowner can’t or refuses to pay). If the board is willing to take this all the way to court for someone who won’t straighten up and fly right, the policy should address that as well.

Personally, I’d add the option of taking the matter to arbitration before running to court, provided both sides are willing to agree in advance to comply by the arbitrator’s decision. If one side loses, but still refuses to comply, the arbitration findings could be used as evidence.
TaraE
(New York)

Posts:32


01/23/2019 1:02 PM  
I agree with you about growing a pair. The minions are not scared. Maybe I used the wrong word.I do not know how a horrible group of people found themselves living in such a small community and are as evil as they are. They all follow the same dark path. I know it sounds like whiny crazy talk, but I tell you it isn't as easy as just growing a pair. That is why I need legal backing and proof to show PM to help us enforce. We pay the PM to help us Enforce so yes they are supposed to. Says every lawyer, police officer, and town tell me. The problem is that the Board is afraid to discuss with the Board lawyer (we have no money also). I will look up NYS law and see if I can see anything there. Thanks
KerryL1
(California)

Posts:6350


01/23/2019 1:52 PM  
Look, Tara, if you're correctly citing your bylaws, how can your PM say your board may not fine owners who are in violation of whatever is listed as violations in your Rules? That IS your proof.

Your PM needs to SHOW you and the rest of the board something in wiring that says you may not level fines against owners who've been found to be in violation of your rule or CC&Rs or whatever. If the PM CanNOT show you something, the move forward with the proper fining procedure per your docs and state law and do it.

If your PM s works for a Management Company (MC), the board should ask the owner to show you that your board cannot levy fines.

I also agree with Sheila.

GeorgeS21
(Florida)

Posts:1208


01/23/2019 4:36 PM  
Tara,

Have you read your CCRs and Bylaws?

Can you post applicable portions here - please don’t post the name of your HOA or neighborhood.
TaraE
(New York)

Posts:32


01/24/2019 8:14 AM  
I tried attaching yesterday, but it kept saying file was too large when it wasn't so I am trying again. I just want to clarify- the PM is willing to send the violations, but they are saying that the Owners do not have to pay and there is nothing we can do about that. I disagree, but if we are paying the PM to manage our accounts- they should be following what is stated in our By-laws. We should not have to vote on it- it should be automatic in my eyes.

It is saying that the file is too big even though I brought it down to 120kb. So below is one portion that I retyped from our By-laws- I used short versions for some words. Example: R&R (rules and reg). There is more in our rules and regs that the by-laws reference as well to follow:

Compliance with Declaration, By-laws, Rules and regulations. Pursuant to Section 339-j of the New york condo act, each unit owner shall be required to comply with and abide by the Declaration , the by-laws and w/ R&R made in accordance therewith and to pay the common charges(CC) levied by the Board of Managers (BOM) The obligation to pay CC shall be enforceable by teh BOM by foreclosure of the statutory lien against the unit for the amount of any such unpaid CC or by suit to collect the same, by action for damages, by injunction or by other appropriate relief. The violation of any R&R adopted by the BOM, or the breach of any By-law or any provision of the Declaration, shall give the BOM the right to impose against such Unit Owner a fine not to exceed two hundred and fifty dollars for any such violation and to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such violation or breach. The costs incurred by the BOM in exercising its rights to correct such breaches or violations, including attorney's fees, shall be due on demand from the unit owner in question and shall constitute a common expense against his unit.

Sorry for any typos

To me it reads that we could foreclose on a unit for violations and/or unpaid Common charges. is this correct?

Thanks
Tara
AugustinD


Posts:1576


01/24/2019 10:12 AM  
Posted By TaraE on 01/24/2019 8:14 AM
I just want to clarify- the PM is willing to send the violations, but they are saying that the Owners do not have to pay and there is nothing we can do about that. I disagree, but if we are paying the PM to manage our accounts- they should be following what is stated in our By-laws. We should not have to vote on it- it should be automatic in my eyes.

It is saying that the file is too big even though I brought it down to 120kb. So below is one portion that I retyped from our By-laws- I used short versions for some words. Example: R&R (rules and reg). There is more in our rules and regs that the by-laws reference as well to follow:

Compliance with Declaration, By-laws, Rules and regulations. Pursuant to Section 339-j of the New york condo act, each unit owner shall be required to comply with and abide by the Declaration , the by-laws and w/ R&R made in accordance therewith and to pay the common charges(CC) levied by the Board of Managers (BOM) The obligation to pay CC shall be enforceable by teh BOM by foreclosure of the statutory lien against the unit for the amount of any such unpaid CC or by suit to collect the same, by action for damages, by injunction or by other appropriate relief. The violation of any R&R adopted by the BOM, or the breach of any By-law or any provision of the Declaration, shall give the BOM the right to impose against such Unit Owner a fine not to exceed two hundred and fifty dollars for any such violation and to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such violation or breach. The costs incurred by the BOM in exercising its rights to correct such breaches or violations, including attorney's fees, shall be due on demand from the unit owner in question and shall constitute a common expense against his unit.

Sorry for any typos

To me it reads that we could foreclose on a unit for violations and/or unpaid Common charges. is this correct?



I would say yes, with the caveat that "common charge" and "common expense" may have a distinction that the defendants will cling to. Foreclosure aside, to me it appears clear that the HOA can take violators of the covenants to court and the court "shall" award the costs of the HOA's attorney and other costs. Your manager sounds clueless. I think a lot of HOA managers are high school graduates at most and not sharp. They exercise control to feed their ego and pretend to know what they are talking about but often do not. What to do about such a manager is the stuff of another thread.
TaraE
(New York)

Posts:32


01/24/2019 10:20 AM  
THANK YOU that is what I thought. It is sadly hard to get a management company reasonably priced that you can depend on. This one isn't as bad as our last, but I hate when they make these untrue statements that can really cause damage.
BarbaraT1
(Texas)

Posts:158


01/24/2019 10:25 AM  
So when the property manager says you can't enforce, do you ever ask WHY?

I see a lot of threads here saying "why would the PM say..." Instead of just...asking the PM.

Your governing documents may say the Association can foreclose for unpaid fines - does the state have any laws about HOA foreclosure? Some states only permit foreclosure if the owner is delinquent on assessments, not fines. That may be what your PM means when she says you can't do anything about it - maybe they mean practically speaking, you can levy a bunch of fines but you can't force the owner to pay them. But then, the only way to know for sure is to ask the PM.
TaraE
(New York)

Posts:32


01/24/2019 10:41 AM  
That is the next part. I have to research NYS. But I believe I asked a lawyer when I was having issues with my neighbor and he said that mgmt should fine them and then foreclose them. But I thought maybe I misheard when the PM said this. What the PM said in my last meeting- "we can fine them, but we cannot make them pay. We cannot put them on lien just for violations and if they haven't paid common charges with violations- a judge would deduct the violations." So at that time, what else could I say? So I have to look up NYS law and then go from there.

Thanks
Tara
BarbaraT1
(Texas)

Posts:158


01/24/2019 10:50 AM  
Posted By TaraE on 01/24/2019 10:41 AM
That is the next part. I have to research NYS. But I believe I asked a lawyer when I was having issues with my neighbor and he said that mgmt should fine them and then foreclose them. But I thought maybe I misheard when the PM said this. What the PM said in my last meeting- "we can fine them, but we cannot make them pay. We cannot put them on lien just for violations and if they haven't paid common charges with violations- a judge would deduct the violations." So at that time, what else could I say? So I have to look up NYS law and then go from there.

Thanks
Tara




Well then, there's your answer. Apparently your PM believes that NY law does not allow an HOA to lien or foreclose for unpaid fines. You said yourself the lawyer you previously contacted was not versed in HOA law, so you probably shouldn't take his word as gospel.

You can certainly research NY statutes yourself. You can also ask them PM what section in the law they are referring to.

You could also ask the rest of the Board members to get an opinion from the HOA's attorney.

The PM and the Association attorney will take direction from the Board as a whole, not from individual members. If you can't get a majority of the Board to go along with whatever it is you want to do, there's nothing anyone on this forum can tell you that will fix your problem.
TaraE
(New York)

Posts:32


01/24/2019 11:04 AM  
Apparently, Our by-laws are written from the New York Condominium Act, therefore technically the PM is incorrect because the wording that I wrote above is stated in the act.
JohnC46
(South Carolina)

Posts:8267


01/24/2019 2:13 PM  
Tara

Do not confuse the right to foreclosure based on unpaid fines versus unpaid dues/assessments. Typically all states allow a foreclosure based on unpaid dues. Few allow a foreclosure based on unpaid fines.
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