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Subject: is this "legal" - enforcement of rules

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BonnieE
(Illinois)

Posts:168

08/18/2008 1:24 PM
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

MicheleD
(Kentucky)

Posts:1676

08/18/2008 2:06 PM
It depends. "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)." What is the reason the board "believes" the owner did something? And what was the "something"? Is there not a complaint and a verification of the infraction?

SusanW1
(Michigan)

Posts:2117

08/18/2008 2:18 PM
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.

BonnieE
(Illinois)

Posts:168

08/18/2008 2:32 PM
Hi Michelle, Here are the 2 letters from the Board. 1st letter: “It has come to our attention that your….project differed somewhat from...Therefore, the Board finds this…to be an unapproved…and requests that…(an action be taken)…within the next thirty (30) days.” Owner response was to request Board approval for project, and provided an explanation of what happened. Board discussed at Board meeting and could not come to a conclusion. 2nd letter sent: “Thank you for your correspondence responding to a Notice of Violation….Your letter was forwarded to the Board…for review…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. Therefore the Bpard has decided to address this issue…by holding a violation hearing. The hearing will be…” You asked: “Is there not a complaint and a verification of the infraction?” There is no written complaint nor verification of the infraction as it is a “he said she said” – meaning that the owner can not provide definitive proof, nor can the Board. The 2nd leter makes reference to a previous Notice of Violation letter, which is assumed to be the 1st letter, although that letter did not conform to a Notice of Violation letter (nor does 2nd letter). My interest here is whether or not the Board is following the process correctly. Thanks! Bonnie

BonnieE
(Illinois)

Posts:168

08/18/2008 2:42 PM
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

SusanW1
(Michigan)

Posts:2117

08/18/2008 3:00 PM
No, I was reading the "procedures" - 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. 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. BY WHOM?*

BonnieE
(Illinois)

Posts:168

08/18/2008 3:07 PM
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

MaryA1
(Arizona)

Posts:2157

08/18/2008 7:59 PM
Bonnie, My thoughts are that the board should have known whether or not there was a violation before sending a letter to the h/o! The exact violation should have been stated and the specific restriction outlined. Then they state they cannot reach a decision but they have no further questions nor are they asking for additional information? It certainly doesn't sound like they know what they[re doing! You asked: "Should the owner be questioning the process?" If I were the member I'd be questioning more than the process; I'd be questioning their ability to do their jobs!

TonyM3
(Arizona)

Posts:131

08/18/2008 8:45 PM
Posted By BonnieE on 08/18/2008 1:24 PM What are your thoughts on this? Should Owner question the process; go to hearing; send written response??? 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.

RW1
(Florida)

Posts:145

08/19/2008 5:39 AM
Taking the "high road" is most conducive to maintaining mutual respect amongst the two sides here. However... the burden of proof is on the accuser. So many BODs are ignorant to their policies, procedures or even reasonable interpretations of their CC&Rs. Some are even power drunk. BASED ON WHAT HAS BEEN SHOWN HERE the BOD has not followed procedure. ASSUMING they did this or that in not the HOs problem. This "procedure" is the foundation of our rights. If you don't do things correctly you may not prevail despite the merit. I would not consent to any meeting until they have properly executed the legal violation procedure. There may not even be a violation here. Now this looks more like harassment. The parties will learn a lot here and this may prevent future mistakes.

KirkW1
(Texas)

Posts:1110

08/19/2008 7:01 AM
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.

DwightT
(Idaho)

Posts:443

08/19/2008 7:23 AM
I agree with Kirk. This just sounds like the Board is asking to sit down and discuss the issue with the homeowner - as has been suggested many times in this forum. Nothing really all that sinister or inept about it. At most, as Kirk mentioned, the Board (or the management company) is guilty of using a standard letter where probably a dictated letter specific for this purpose would have been better. Go to the meeting, discuss the matter with the Board, but don't get defensive until there is actually something to be defensive about.

BonnieE
(Illinois)

Posts:168

08/19/2008 11:02 AM
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

MaryA1
(Arizona)

Posts:2157

08/19/2008 3:28 PM
Bonnie, Perhaps the word "violation" is the bone of contention for the homeowner? Afterall, the board cannot even determine if a violation has occurred. Perhaps the board should just call it a hearing.

BonnieE
(Illinois)

Posts:168

08/20/2008 5:58 AM
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

MaryA1
(Arizona)

Posts:2157

08/20/2008 8:04 AM
Bonnie, If, as you stated previously, the board stated "they cannot reach a decision" and "they have no further questions nor are they asking for additional information", my question is: What is the "violation" meeting for? Are they all going to sit around the table and look at each other? In thinking more about the whole situation, perhaps the board should just eat some crow, admit they erred and rescind the violation notice. Just send a letter stating: "We find we erred in sending a violation notice AT THIS TIME." This way the door is left open should they find there is indeed a violation; one they can define!

MicheleD
(Kentucky)

Posts:1676

08/20/2008 8:15 AM
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.

BonnieE
(Illinois)

Posts:168

08/20/2008 8:40 AM
Mary, you said: “What is the "violation" meeting for? Are they all going to sit around the table and look at each other?” My question, exactly. I know how these hearings are run: The board president will thank the HO for coming, then will state that Board is holding a violation hearing because…. You (the HO), may provide any information you may have in your defense. The Board may ask additional questions. Then the Board will convene in an Executive Session to deliberate. You are welcome to return the to Board meeting which will immediately follow to hear our determination. In any event, you will receive a follow up letter of determination. So, the HO states what? Please show me the "violation complaint" and let me know who submited it. What is the proof that a violation has occurred? Our Rules (and IL law) require that this info be provided at the hearing. It has been my experience that the Board has not done so in the past when request was made. You also said: “In thinking more about the whole situation, perhaps the board should just eat some crow, admit they erred and rescind the violation notice. Just send a letter stating: "We find we erred in sending a violation notice AT THIS TIME." This way the door is left open should they find there is indeed a violation; one they can define!” Having known this Board for 14+ years, I think it is highly unlikely they would admit to an error….but perhaps things can be worded in such as way as to allow them to “save face”. Hmmm... Thanks, Bonnie

BonnieE
(Illinois)

Posts:168

08/20/2008 8:42 AM
Michelle - I think you have hit the nail on the head. :-) thanks - B.

MaryA1
(Arizona)

Posts:2157

08/20/2008 12:41 PM
Bonnies, Michele has expressed my exact sentiments! If I were the member I definitely would attend the meeting. I would ask to see a copy of the complaint and would also ask to see the verification of the complaint. I would have copies of the pertinent State law and the assn rules that gives me this right in case they deny it. The fact that the board is going through with this just shows their arrogance. And, I'm not surprised in you saying they would never send a letter such as what I suggested.

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