is this "legal" - enforcement of rules

Hi!

I have a question with regard to enforcement of the Board adopted Rules. Please see below.

Section XXVI of our Rules contain the Enforcement Procedures; here are the policies and procedures (paraphrased):

1-in accordance with Section 381.4(I) of the IL Condo Property Act, if someone is believed to be in violation of any of the provisions of the Declaration, By-Laws or Rules/Regs, a signed written complaint must be submitted using the form prescribed by the Board (attachment C) and sent to the MC.

2-the complaint shall set forth….(provides a list of specific pieces of info)

3-Owner to be sent a Notice of Violation and Hearing (exhibit D) to appear before the Board not less than 10 days in advance of the Hearing date.

4-The Board shall hear from all parties involved in the complaint and conduct a brief, informal hearing….the Board shall deliberate in private…..etc.

5-The Board shall at its next regularly scheduled meeting ratify the findings of the hearing……Board shall notify the parties via a Notice of Determination (exhibit F) as to its findings…etc.

Exhibit D, Notice of Violation, is a form letter which includes specific legalese per IL Condo Property Act, plus states the alleged violation; description of the complaint; identifies the specific part of the Declaration, By-Laws, Rules that Owner has allegedly violated; provides notice of hearing; date/time/location.

Question: Can the Board hold a violation hearing when a Notice of Violation as specified in the Rules has not been sent to the Owner?

Here is what led up to this:

Owner received a 1st letter from the Board asking that an action be taken within 30 days because Board believes Owner did something that is not in conformance in the Rules (but did not specifically identify the Rule).

Owner provided clarification regarding the alleged action in a written response to the Board.

Board discussed in a Board meeting, could not reach a decision, so sent a 2nd letter to Owner making reference to a previous Notice of Violation they sent to Owner, and told Owner that since Board could not come to a conclusion on the matter, they decided to hold a violation hearing.

Additional information was requested from the Board (what questions do they have, what additional info do they need, etc.); Owner was told that Board did not have any questions nor was asking for any additional info.

What are your thoughts on this? Should Owner question the process; go to hearing; send written response???

Thanks for any help you can provide!
Bonnie

The Board may assume that the MC sent a letter to the homeowner and EVERYONE knows what the violation is. And now they are doing their part, assuming that the homeowner knows what they are talking about.

Hi Susan - you said:

“The Board may assume that the MC sent a letter to the homeowner and EVERYONE knows what the violation is. And now they are doing their part, assuming that the homeowner knows what they are talking about.”

Then there is an awful lot of assuming going on. (you were you talking tongue in cheek?)
:-)
Bonnie

Susan...

“…a signed written complaint must be submitted by an owner, the managing agent, a resident or member of the Board of Directors”

-and-

“Any complaint… may be submitted by any Board member, employee of the Board, resident or employee of the managing agent…”

All Board letters are sent by the property manager on behalf of the Board.

Bonnie

I think the owner should agree in writing to meet with the board (can't hurt) and also request written authorization to record the meeting...and of course question everything.

Wow, I am normally the cynic, but I had guessed something very different then what was going on. Here is my take on the situation:

Somebody (my the manager) noticed that something didn't appear to be an approved change. A letter was sent and the response was to request approval of whatever happened. The Board then discussed the issue and could not come to a conclusion about approval or not. They perhaps didn't see enough to make the decision.

So the manager sent out a notice that the Board wished to meet with the homeowner. Unfortunately, the manager has the people skills as oh so many PMs do (meaning they can only deal well with positive things). Thus the Manager sent out the standard notice for a "violation hearing." And if you get right down to the matter this may indeed be a "violation meeting."

I would advise that the owner go to the meeting prepared to discuss the change in the property. Bring plenty of photos and a map of the property to show the outline of preexisting and new items. The more information you have the better.

Thanks to all of you for your thoughts.

RW - I agree that it is better for the owner to take the high road and discuss the issue with the Board.

I do not think the owner should do it in the context of a violation hearing. A violation hearing is part of the enforcement process and can lead to other legal remedies being pursued by the Board. If the owner does not question the process, then it may appear the owner is accepting that an alleged violation has been filed and the enforcement process is underway.

Tony – per our governing docs, violation hearings are closed sessions; they cannot be recorded, nor are there minutes taken.

I also agree that the burden of proof is on the accuser.

Kirk, you said:
“Somebody (my the manager) noticed that something didn't appear to be an approved change. A letter was sent and the response was to request approval of whatever happened. The Board then discussed the issue and could not come to a conclusion about approval or not. They perhaps didn't see enough to make the decision."

The “somebody” who noticed that something may not have been an approved change is a Board member (we think this to be the case). You also thought that the Board did not see enough to make a decision at the Board meeting. If the Board did not have enough info, then they should ask for it. Yet, the Board was asked twice – the 2nd time as information to bring to the hearing or meeting - if they had any questions about the issue or needed any additional information, and both times they said no, they had all they needed. If the Board does not have any further questions nor needs any additional information, what will the violation hearing (or a meeting) with the owner accomplish?

It is my opinion that the Board thought that the only way to get the owner to the meeting was by saying it would be a violation hearing. They cannot require it otherwise (although they could have asked).

If a violation is alleged, then the enforcement process should be invoked: complaint filed, Notice of Violation sent; hearing held, etc. If the Board is not sure whether there is a violation, then shouldn’t they move on? It seems that by not making a decision (yes or no re a violation), that they have made a decision - no.

I agree with you, Mary, that the Board should have decided whether there was a violation (alleged) before sending the 1st letter. If they were not sure, then they should have asked for more information, then made a decision.

Dwight & Kirk – for clarification, the PM did not send a Notice of Violation letter as per the Rules. The PM sent a “dictated” letter rather than a standard letter (which is why this is so confusing).

This is the dilemma. The PM and Board did not follow the Rules-specified enforcement procedures. Should the owner point this out and agree to meet with the Board, but not as a violation hearing? Or, should the owner just attend the violation hearing?

Thank you all!
Bonnie

Hi Mary – yes, the owner is concerned about the enforcement aspect of all of this. If the Governing Docs and Rules-specified process is followed and the Board makes a determination that a rule has been violated, I have been given to understand the owner will comply. But, because the Board is not able to even make such a determination, and they are not following the Enforcement process as specified, it leaves the owner with questions as to what to do.

There are no provisions for any other type of hearing in our Gov Docs.

In these types of situations, the Board would normally send a letter to an owner, specifying the issue, stating their questions, and identifying any additional info needed, and request the owner to respond within a specified time period. This is what was done for the 10+ years I was on the Board. The owner would respond in writing and the Board would either make a decision, or request more info and then make a decision. If they determined there was a violation, the specified process was followed (send a Notice of Violation, etc.). If the decision was otherwise, this would be specified in a letter back to the owner. The perplexing thing here is that the Board is not following the procedures used in the past (based on my past experience). BTW, since someone may ask - the current Board has 3 of 5 existing/same members from when I served.

As I previously asked: This is the dilemma. The PM and Board did not follow the Rules-specified enforcement procedures. Should the owner point this out and agree to meet with the Board, but not as a violation hearing? Or, should the owner just attend the violation hearing?

Again – thanks for your help on this,
Bonnie

I agree this seems very unusual.

What strikes me, as it does most of you, is that the board was "unable to come to a conclusion on this matter."

"The Board spent a great deal of time discussing the matter from every angle…however…we found that we were unable to come to a conclusion on this matter."

That is so incredibly vague as to be meaningless.

Does it mean, as one may infer, that they need more info? In which case they should be HAPPY to obtain more info from the resident, in writing, by phone, whatever.

Or does it mean that SOME members felt there was NO violation, while others felt there WAS a violation and they are at a stalemate or standstill in voting on a final resolution?

In which case, they want to drag the homeowner in to do a song-and-dance to try to convince one side or the other that everything is as it should be.

Michelle - I think you have hit the nail on the head.

:-)

thanks - B.