Impromptu Rules

Nutshell - CC&R's state restrictions on dog barking (ie nuisance issues) and go on further to state what repercussions (ie ultimately the removal of dogs) can be expected if not corrected. CC&R's state restrictions that address issues that would prevent the "quiet and peaceful" enjoyment from being disrupted (this is relevant to my neighbors continually blasting rap music from their home either via their car or from open windows of the home.

INSTEAD of the HOA enforcing these CC&R's, they say they have adopted "policies" that go like this -

Noise complaints - The "policy" is to refer the offended residents to call the Police department. (I have called them no less than 6 times-useless. They warn then leave.

Dog Barking - The "policy" is to refer the offended resident to the Humane Society for them to handle.

It seems that this is an attempt to subvert their responsibilties on these issues. The "policies" have left me no more benefit of living within a HOA than those who do not. The Manager refers to these issues as "lifestyle" issues that the HOA doesn't want to get involved in. I came back with telling him that - gay marriage is a "lifestyle" issue - THESE issues are CC&R issues. Thatis when he informed me of these "policies" of referring residents to the Police Dept for noise and Humane Society for barking.

Normally - calling the Police Dept and Humane society can be done anonymously UNTIL you want something done. As such, I have now been persoanlly thrown to the forefront of this fight and my family's safety is a valid concern all because it couldn't be handled/witnessed via or through the association Manager. I even took him in video/audio that he could view while not having to get out of his chair. No interest. I have had five TRO's filed against me - ALL DISMISSED - my house egged twice - I've had to put a video security system in defending my home (which also proved the lying taking place as in the 5th TRO)

I am now ready to remedy this "policy" issue.

I have read through peoples messages on this site and I keep reading a too general of a comment -"check your CC&R's to see if the HOA has the authority to amend the CC&R's/Rules.........."

The CC&R's have several elements - Articles of Inc - By-Laws - Declarations
If the Board is granted the authority to adopt "policies" - WHERE within these elements would I find this authority granted?

http://www.villagesofkapolei.com/govdocs.htm

Beside fining the offender what more could the HOA do?

This association in 10 years old. I have only been here three years. I'm sure all previous complaints have met with the same fate as I when these types of complaints are brought to their attention. "The POLICY is to refer such complaint to the proper authority in lieu of the HOA addressing these "lifestyle" issues. This is a cluster community - 3500 homes - 3000 sq ft lots. Hawaii is a different kind of place. Complacency runs amok here. I personally spoke with one resident who did express having the same problem. When I asked her if she had notified anybody, her reply.........."I don't want to cause any problem for anyone". If victimizing neighbors were as considerate as those who are offended - there would be no problem but inconsiderate neighbors take advantage of the laid back attitude here. Maybe I'm supposed to have it too but I'm from Las Vegas where HOA's actually mean something. There are 3500 residents in this HOA - plenty of power in gathering the residents but maybe too big to gather the required percentage of required signatures. Just in my immediate area there are 4 barking dog problem houses - 1 music playing residence - 1 party house. Even one of the Board members has a problem with a party house. I just don't understand why an HOA would not WANT to do what they can to make the community a pleasant one. At this point I truly believe the cause of these problems is mostly due to a lazy on-site Manager who has convinced the Board that NOT getting involved in these issues is the safer position for them. I don't see it that way.

Dave it sounds like it's time to get the neighbors involved and replace the BOD if they won't act with some that will.

Some HOA CCR's give YOU individually the ability to enforce the CCR's not just the HOA.

I, too, am a huge proponent of contacting local agencies and authorities when CC&R violations fall under their jurisdiction as well as our CC&Rs.

However, we do that not in LIEU of any enforcement on our part, but in concert with it.

When and IF it reaches the stage where compliance is NOT met by either notification from the HOA board OR from the local authorities (such as the Animal Control Officer in the case of a barking dog), then we proceed with the next level of enforcement, attorney notice.

If compliance is STILL not met, then we will move to let a judge handle it through either restraining order (against the action) or whatever.

In that case, all of the history with local agencies in trying to resolve the problem support our case and go a long way to show we have tried to be fair and go through all the proper notices, etc.

So your board is definitely shooting itself in the foot by allowing ONLY the local authorities to deal with clear CC&R violations. That's because animal control or whatever can only enforce their own rules, NOT ours.

It is clearly time to clean house and get a responsive board that does NOT have a policy of diluting, or, more appropriately, neutering your CC&Rs.

To CharlesW1

Thank you for your compassion. The 3500 residents here are 99% full time. Prices are high in Hawaiia and as such, there aren't too many part time residences here. Cluster community - 3000 sq ft lots - 1400-1800 sq ft homes - prices 450K-525K. The street parking incident took place back when I lived in Las Vegas. It was just my first exposure to an HOA. I still own that house. The President of THAT hoa and I fire joke emails back and forth. It did get resolved.

To bring this full circle
I have gone through the governing docs and I see where there has to be a vote by its members to change the CC&R's. To side-step this the HOA has adopted internal "policies" that state (so far verbally) their procedures for handling dog barking/noise is to refer the offended party to either the Police dept (for noise issues) and the Humane Society (for barking issues). I have told them that my common sense tells me that they cannot adopt "policies" that allow them to subvert their responsibilities to enforce the CC&R's. I have told them "policies" are meant for deciding things like where they should buy their copy paper to reduce costs. They state that these "policies" is HOW they have chosen to enforce the CC&R's.

If it comes to legal action - under what premise could suit be brought against them?

Hmmm. Our ByLaws state that the Board shall have the power from time to time to adopt Rules and Regulations deemed necessary for the benefit and enjoyment of the Community. If we have a similar ByLaw here, I'd guess the Board COULD (not SHOULD, but COULD) decide barking issues will be handed off to the local Federales or Humane Societies.

BTW - did I miss this point: Do you have an outside property manager? If so, at the Board's direction, it COULD hand off the problem to the PM for resoulution. Unless the Board just isn't interested in enforcement, for whatever reasons.

John:

I would disagree with your logic, if there is a covenant that speaks specifically to this the board in my opinion can not make rules up to circumvent it. That has to be done by the membership through a change in covenants. The board needs to enforce the rules, and if this rule is specfic about barking and the punishments for it that leaves little to interpretation. My other question would be how does pawning this off on the local municipality benefit the community, it does not. All it benefits are the board members who are too lazy, scared or don't want to tangle with friends or neighbors.

I want to make it clear that even though we use the local zoning and/or other agencies to "report" issues to, we do not tell the homeowner it is there responsibility to do that.

To remove the specter of finger pointing, the HOA makes the report based on a formal complaint process we have (which can be anonymous).

We then verify the complaint (dog barking, noise, etc), and then we issue the letter of violation AND report to the appropriate agency.

IF we have to go do court to resolve the issue, we would LIKE the complaining residents to participate, either via deposition or affidavit or even taking the stand, but we don't force them to.

The fact that a board member has witnessed the violation, especially a repeated one, is really all we need.

One of the few court actions we've had involved dogs, even though our CC&Rs don't address "excessive barking," per se, we DO have a nuisance clause.

Based on that clause, and supported by Animal Control reports we subpoenaed to bolster our claim, the judge determined sufficient evidence that the barking was, in fact, excessive and did, in fact, create a nuisance to the neighborhood.

The dogs were ordered removed from the premises. The judge even read into her order that her judgment was based largely on our governing documents.

When Animal Control could not get the dogs removed, we could, based on our governing documents.

First paragraph-
You said "I'd guess the Board COULD (not SHOULD, but COULD) decide barking issues will be handed off to the local Federales or Humane Societies."

But that would go AGAINST your first part - Doing so would not "benefit" nor add to the enjoyment of the community. Adopting these particular rules would do the opposite. Do you see it this way?

Forgot to address your BTW -
The PM is an individual hired by the Association who sits at an on site office.

You said"
" The fact that a board member has witnessed the violation, especially a repeated one, is really all we need. "

To elaborate on one example of noise (continual loud music projected into the common driveway from a home - Did I say music? I meant rap)

I was home the day my security system was being installed. Neighbors saw this and fired up the "tunes". I called the Resident Manager to
A. Let him know my system was getting installed that day
B. Invite him to drive over and witness the sound level at which the music was being piped into the area

His reply? Well I don't think that me coming over would do any good as I don't own a "decibel meter"

Referring to his inability to determine the legality of whether this sound level violates CITY ordinances (not peaceful enjoyment of lots but CITY ordinances via decibel readings)

Brad,

One man's circumvention is another man's enforcement, eh? And IF such pawning resulted in the resolution of the problem, that would be a benefit to the community, yes?

I take on board your "don't want to tangle with friends or neighbors" possibility. Most of us serving on HOA Boards would probably agree this is the worst part of our duties; screwing with their children or dogs probably the worst of the worst. All I'm saying, based on (our) ByLaw I mentioned, is that a Board COULD (not SHOULD), with such broad language, adopt that as an option. If the HOs don't like it, they have their own options to remedy their dislike.

Try this: in a worst case scenario, if all options were exhausted, would YOU volunteer to play your Board's Miss Gulch and show up at the offending homestead with a basket and a note from the Sheriff to take away poor Toto (see The Wizard Of Oz)? Not to over-dramatize this (nah, I will), if you showed up at my door, you'd be met by me and my two friends, Smith and Wesson (see The Enforcer, #2 in the Dirty Harry series).

Anyway, good discussion, as always.

John:

No offense...but if I was on the board and it was my job to enforce yes I would show up at your door to take away Toto. The only difference is I would have a court order and the local police with me so your two friends would be rendered useless. I have been around the block long enough to know that people who decide not to follow the rules are just bullies looking to exhert their "toughness" through intimidation, lack of cooperation, and a feeling that they are above the law and any rules.

Any way you slice it by referring them to the local authorities and not following remedies allotted to them in their documents is not enforcement and in this situation you can't honestly believe it is. No one likes to do it, but everyone likes to have a harmonious neighborhood, you can't have your cake and eat it too.