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Subject: Hearing with HOA
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KristineK2


Posts:0


08/08/2019 1:32 PM  
We have a hearing scheduled with the HOA about my tenant and violations they claim are still happening. We were told it would be a closed meeting with the HOA board, property manager, lawyer (represents condominium... not sure who she represents), owner (me) and any witnesses I want to bring to prove the violations have not occurred or were abated in the time frame (10 days). Today our association posted a link stating the time and place of the meeting and has it open to the public. When I called the lawyer she continued to state it was a closed meeting and they can bring witnesses they have to defend the violations. When I asked her about it being posted as open to public she stated "I'm not obligated to give you any legal advice" and hung up on me.

I find this violates our privacy and goes against what a "closed" meeting actually is... any advice??
SueW6
(Michigan)

Posts:526


08/08/2019 1:45 PM  
Usually the board calls a meeting and meets, then a motion is made to go into a Closed Meeting. Only you ( as the one being accused) can request that this be a public meeting.

You’ve got bigger fish to fry about this meeting. Anyone in the meeting you don’t want there can be asked to leave.

Be warned that the results of the meeting MAY be announced at the next open meeting if the end results affect the entire community.
KristineK2


Posts:0


08/08/2019 1:55 PM  
Thank you! I requested it to be a closed meeting and was told it was a closed meeting. The lawyer is saying they are allowed to bring witnesses....which is fine but why is it posted as a public meeting like a regular board meeting. I feel this go against our privacy as owners. Laws need to be changed to stop allowing HOA’s so much power. They basically create their own government!!
KerryL1
(California)

Posts:6534


08/08/2019 4:04 PM  
Kristine, what do you own governing documents say about hearings? What about MD state statute? In CA, for instance, disciplinary hearings are in closed (executive) session. The owner can request it be at an open meeting, but the Board doesn't have to grant that request.

You wrote that laws need to be changed, but your state or may already have laws to protect your privacy.

(PS to Sue. In CA and other states too, there is no requirement to meeting first in an open meeting and then adjourning to executive session. Executive sessions can be at any time so long as the board posts them and the general topic(s) 2 days prior.)
JZ2
(Florida)

Posts:43


08/08/2019 4:20 PM  
Consult your state's laws on the subject.

For example, here in Florida, any such meeting is REQUIRED to be open and noticed to the community.
KristineK2


Posts:0


08/08/2019 6:03 PM  
According to the laws of Md and our bylaws...hearings are held as an executive session which is a closed meeting. The lawyer stated she doesn’t have control for what is posted but if I show up to the hearing and it’s open to the public...can I request another meeting to follow the bylaws?
AugustinD


Posts:1886


08/08/2019 6:48 PM  
Posted By JZ2 on 08/08/2019 4:20 PM
For example, here in Florida, any such meeting is REQUIRED to be open and noticed to the community.
For Florida HOA's and condos, it appears that hearings involving non-architectural violations are heard, "before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee." See Florida statute 720.305(2)(b). Since such hearings are not board meetings, and pursuant to 720.303, it appears to me that such hearings are not required to be open to all HOA members. See Chapter 718 for the Florida condo statutes stating the same.

Reinforcing this:
https://www.hoaleader.com/public/Condo-HOA-Violation-Hearings-4-Experts-Explain-Who-Can-Attend.cfm
AugustinD


Posts:1886


08/08/2019 7:10 PM  
Posted By KristineK2 on 08/08/2019 6:03 PM
According to the laws of Md and our bylaws...hearings are held as an executive session which is a closed meeting. The lawyer stated she doesn’t have control for what is posted but if I show up to the hearing and it’s open to the public...can I request another meeting to follow the bylaws?
First, I see Section 11-113 of the Maryland Condominium Act does, as you noted, require that this hearing be held in executive session.

Second, did the HOA post on the web site what the hearing is about? Did the HOA post your name at the web site and say, in so many words, that you are accused of wrongdoing?

Third, the HOA attorney is not merely lacking an obligation to give you legal advice. The HOA attorney is flat-out prohibited from giving you legal advice. The law requires the HOA attorney to make clear that she represents the Association and not any one individual member; that the HOA as her client is in an adversarial relationship with you insofar as the subject matter of the hearing is concerned; and that therefore the HOA attorney can only advise the Board as to how to proceed.

Fourth the lawyer saying she has no control over what the Board posts is bullsh-t but legally allowed. But it is true the HOA lawyer can only advise the board not to post such things. If the Board goes ahead and does it anyway, the HOA lawyer has to defend the board's actions, at least publicly. It's a requirement of her "profession."

If you answer the questions above, I will post back about how I think you should proceed.

MelissaP1
(Alabama)

Posts:8396


08/08/2019 9:56 PM  
It sounds like they are making the meeting "Public" in order for them to have more witnesses come forward. Seems your tenants may have caused additional issues that others may want to speak up about. For example: Maybe they make it a habit of playing loud music with windows down driving through the neighborhood. Other members may want to come to the meeting to talk about it.

Here is the problem. Not much you or the HOA can do IF your rental agreement doesn't have it in the agreement to obey the HOA's rules. You can't evict your tenant for violating the HOA's noise restriction if you don't have it in your rental agreement violating the HOA noise rules is a cause for termination of lease.

This is why I ALWAYS recommend landlords put in their lease agreements that their tenants must obey the rules of the HOA. Plus provide them a copy of the CC&R's and Articles of Incorporation as those are public documents. (Everything else HOA exclusive). It protects the landlord and allows them to evict their tenants for violations. The HOA typically can't evict someone tenant but hold the owner feet to the ground. Which means the Owner has to be pay the fines.

So I would start looking at your rental agreement to see what it takes to evict your tenant if need be. Plus next time write in the caveat about following HOA rules...

Former HOA President
KristineK2


Posts:0


08/09/2019 1:20 AM  
Yes and in our bylaws it states an executive session is a closed meeting. We received a letter stating 3 violations that needed to be abated with 10 days or a hearing would be held. We spoke with our tenant and all 3 violations have not occurred again ; however we are still having a hearing. Our HOA has made it a known fact they do not want renters especially renters with children. The HOA posted an event for people to share and reply to which stated it is a hearing against Homeowner’s and open to the public with the location. I am glad my HOA fees are helping to pay for this lawyer!
MelissaP1
(Alabama)

Posts:8396


08/09/2019 4:07 AM  
A HOA can't evict your tenant. Which is frustrating for them. I say bring the proof violations were corrected. The HOA can hold your feet to the floor for the tenant's violations. However, the HOA has to prove they have the right to fine and have a fining schedule for violations. They can't just take a random # from the air.

Example: NOT removing garbage can on Friday after pick up on Thursday. That is a $25 fine per day etc... That should be defined in a fining schedule.

Former HOA President
KristineK2


Posts:0


08/09/2019 4:29 AM  
Thank you! Yea I’m assuming they are going to fine us. One was for alleged illegal action and when I asked for police reports there was no response and just said we have witnesses from other owners. They will also try to fine us for her puppy that allegedly peed on the steps and my tenant said she cleaned it right up when she came inside...she just had to race him down three stairs ways of floors to get him out because she was potty training him. The lawyer sent me a picture of wet spots on steps...I don’t even know if it’s pee and other dogs live in the unit! One violation that my tenant admitted to was her truck stopped working and was inoperable...I told her if it wasn’t moved they would tow it...they did so I’m guessing we may get fined for that. However our HOA fees pay for a towing company yearly...I saw it in the budget. We also asked to meet with the boats back in May to discuss their concerns and the president wouldn’t respond..6 weeks later we get a letter from a lawyer. The lawyer said to me yesterday “they aren’t obligated meet with you.” I would have thought I’d they have so many issues they would want to meet with me so I can relate the info to my tenant!
AugustinD


Posts:1886


08/09/2019 4:33 AM  
Kristine, write the board a letter like the following, and send it certified mail, return receipt requested: "Dear Condominium Board, The Association alleges three violations against my unit. Section 11-113(b)(3) of the Maryland Condominium Act states that you must hold a hearing "in executive session." But in apparent violation of the Condominium Act, the Association has opened this hearing to all members. If I appear at the hearing and it is still open to all members, I will have no choice but to refuse to participate. Furthermore, since a hearing open to all members is unlawful, my understanding is that actions taken at this hearing will also be unlawful, and so I will not be bound by any decision made at this hearing. Thank you, ____ _____, Unit ___, _____ Condominium Association, _____, Maryland Email: _______ Phone ________."

If the hearing remains open to the public, attend but read and re-read the pertinent sections of the letter aloud in response to any question put to you. Say nothing else.

Regarding the condominium harassing your tenants because of their children: You need to document specific acts that show the condominium is homing in on the children. Then seek an attorney.
MelissaP1
(Alabama)

Posts:8396


08/09/2019 4:54 AM  
Where is it written that it's a violation for a dog to pee on steps? It sounds like they took care of the inoperable vehicle by towing it. What else do they need to do? Maybe pass the expense onto you for the towing costs. Worst case.

I would get a copy of your CC&R's, by-laws, and Articles of Incorporation. Read them forward and backwards. Have them define the violations.

Again a HOA can't evict your tenant. You may choose to do it if the tenant is in violation of the lease agreement. However, tenant's have rights too. Something you may also want to bring to the table to let them know the legal limitations on evicting tenants.

I had a tenant that worked on motorcycles and moved a baby Emu into my back yard! The HOA never contacted me even though lawncare had stopped mowing my backyard out of fear of the Emu. I was able to evict my tenant after 5 months because of non-payment of rent. It wasn't because of their violations. The law allows for a tenant to respond to eviction notices which can extend the process up to a year. I ended up putting a for sale sign out front to get him out once the eviction process went through.

Former HOA President
SteveM9
(Massachusetts)

Posts:3296


08/09/2019 6:08 AM  
They will also try to fine us for her puppy that allegedly peed on the steps and my tenant said she cleaned it right up when she came inside...she just had to race him down three stairs ways of floors to get him out because she was potty training him. The lawyer sent me a picture of wet spots on steps...I don’t even know if it’s pee and other dogs live in the unit!


allegedly peed, photos from the lawyer of the pee and tenant admitting the dog peed on the carpet... not sure I would push back so hard on the HOA saying you cant prove its pee or even her dog. LOL.

Your tenant sucks. You, the owner, will pay the financial penalty for renting to her.

As for an open vs closed meeting? Who cares? Your not even the person who did the violation. Your simply the one who pays for it.
PatJ1
(North Carolina)

Posts:93


08/09/2019 6:15 AM  
In NC when we have a car towed, the owner pays the bill to the tow company when they claim the car. Not sure why the HOA would be paying towing fees yearly.

Read your Rules & Regulations also. Our contain the violation process and fining schedule.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
SteveM9
(Massachusetts)

Posts:3296


08/09/2019 6:25 AM  
Well, just because towing is in the budget, doesn't mean its an expense in the financial ledger. Meaning the HOA budgeted for it, but didnt use the service or spend all the money.
PatJ1
(North Carolina)

Posts:93


08/09/2019 7:34 AM  
Posted By SteveM9 on 08/09/2019 6:25 AM
Well, just because towing is in the budget, doesn't mean its an expense in the financial ledger. Meaning the HOA budgeted for it, but didnt use the service or spend all the money.




Well, because it’s a budgeted item, I would assume that they have and/or anticipate paying towing fees. Just curious when an HOA might pay towing fees. That’s all.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
JohnC46
(South Carolina)

Posts:8550


08/09/2019 8:17 AM  
Posted By PatJ1 on 08/09/2019 7:34 AM
Posted By SteveM9 on 08/09/2019 6:25 AM
Well, just because towing is in the budget, doesn't mean its an expense in the financial ledger. Meaning the HOA budgeted for it, but didnt use the service or spend all the money.




Well, because it’s a budgeted item, I would assume that they have and/or anticipate paying towing fees. Just curious when an HOA might pay towing fees. That’s all.




Someone moves on and leaves a derelict car behind. Someone parks in a Handicap designated spot and refuses to move. Several reason an association would pay to tow a car.
PatJ1
(North Carolina)

Posts:93


08/09/2019 8:26 AM  
Guess many municipalities are different. We just call the tow company, they take the car, and they get payment from the owner when the car is picked up. No cost to HOA except for the time to document and call it in. Adding, condo community with private roads.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
KristineK2


Posts:0


08/09/2019 5:45 PM  
Thank you!! They now changed it on their Facebook page as a board meeting. How can we have a board meeting and hearing the same place and time?
KellyM3
(North Carolina)

Posts:1418


08/10/2019 5:45 AM  
Sounds like the tenant is the problem w/ the landlord holding the responsibility. You can't assume harassment if the community is calling witnesses to discuss the matter. I, too, am a landlord but not of condos. In a decade of experience, the tenant has really never been "in the right" in a neighborhood issue or a problem associated w/ behavior or property maintenance. I wish it were not the case.
CathyA3
(Ohio)

Posts:338


08/10/2019 8:55 AM  
Posted By KristineK2 on 08/09/2019 5:45 PM
Thank you!! They now changed it on their Facebook page as a board meeting. How can we have a board meeting and hearing the same place and time?




A board meeting is made up of a general session (open to all members if you're an open meeting state) and an executive session (during which confidential information is discussed and which is closed to members unless they are involved in one of the confidential discussions). Unless your governing docs or state law says otherwise, a hearing is an acceptable activity for an executive session.
SueW6
(Michigan)

Posts:526


08/10/2019 12:46 PM  
No motions can be passed in executive session. Discussion and fact finding only. So if the board wanted to take action as a result of the hearing. it goes back into the regular board meeting and can then motion to take the action.

That’s why this whole thing must begin and end with a duly called board meeting.
NpS
(Pennsylvania)

Posts:3572


08/10/2019 12:49 PM  
Any thoughts on whether the OP has the right to know the names of the "witnesses" in advance of the meeting?

Sikubali jukumu. Read all posts at your own risk.
KristineK2


Posts:0


08/10/2019 12:51 PM  
So this mean they can decide on any fines/sanctions until the next board meeting? In any other situation I would be on board with the HOA...unfortunately I’ve been witness when I lived there to how these people on the board treat others especially renters. They pick and choose when to enforce rules and have harassed every renter...and me as an owner when I lived there. Hopefully I can just sell this money out of a co do within the next year!
KristineK2


Posts:0


08/10/2019 12:52 PM  
I asked the lawyer if I could know who they plan on inviting as witnesses because whose to say they just don’t invite people they are friends with?? She laughed at me and said “I don’t have to give you that information”
GenoS
(Florida)

Posts:3123


08/10/2019 2:53 PM  
Posted By AugustinD on 08/08/2019 6:48 PM
Posted By JZ2 on 08/08/2019 4:20 PM
For example, here in Florida, any such meeting is REQUIRED to be open and noticed to the community.
For Florida HOA's and condos, it appears that hearings involving non-architectural violations are heard, "before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee." See Florida statute 720.305(2)(b). Since such hearings are not board meetings, and pursuant to 720.303, it appears to me that such hearings are not required to be open to all HOA members. See Chapter 718 for the Florida condo statutes stating the same.

Reinforcing this:
https://www.hoaleader.com/public/Condo-HOA-Violation-Hearings-4-Experts-Explain-Who-Can-Attend.cfm

I agree with AugustinD's take. In FL, board meetings have to be open and so do those regarding Architectural decisions and also any committee meeting where the final approval will be given to disburse association funds. That would seem to not include a fining hearing where board members are specifically prohibited from attending.

I was on one committee that had a lot of meetings to discuss proposed changes to the Rules & Regulations and consider amendments to our governing documents. There was no spending of money and definitely not any final decisions made on anything. We prepared recommendations to the Board of Directors, and that's all we did. Nevertheless there are MANY in Florida, including our own HOA attorney, who will advise that ANY and ALL committee meetings be held as open meetings where every owner has the right to attend and observe. I think there's no legal requirement for that (but then again, I'm not a lawyer) but if there is to be "error" I would rather err on the side of openness, so I never objected. I'm in favor of doing things right, according to the law and governing documents, and if push came to shove - unlikely - I'd insist that there was no need for a particular committee meeting to be open unless the statute clearly said so.
AugustinD


Posts:1886


08/10/2019 3:37 PM  
Posted By SueW6 on 08/10/2019 12:46 PM
No motions can be passed in executive session.
I do not agree. For certain topics, and pursuant to case law and sometimes statute, motions can and should be made in executive session.

NpS, my opinion is that due process (even at the HOA level) has not been achieved if the accused does not know who the witnesses are in advance. The accused has to have a reasonable chance to prepare questions for witnesses.

Kristine, for what it is worth, the HOA attorney by law is vehemently not on your side. She or he will try to intimidate you. She or he can and will lie to and about you, and you will have no recourse to stop the lies. If you can afford it, hire an attorney to do the same to the Board.
KerryL1
(California)

Posts:6534


08/10/2019 4:34 PM  
With Augustine I believe Sue is again mistaken OR her belief that no motions can be made in executive session applies to Michigan. Or to boards that are required to follow robert's rules as in CT?

I certainly does not apply to CA, the owner's discipline activities should occur in executive session and the board makes decisions in ES as well.

CjC


Posts:192


08/12/2019 12:15 PM  
Before you go into the hearing, make sure the HOA has the ability to fine you based on the Docs. Our HOA in Maryland does not have the power to fine in the docs even though the "rules" give a fining schedule.
KristineK2


Posts:0


08/12/2019 12:21 PM  
Thank you! Where can I find this information?
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