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MikeC6
(Illinois)

Posts:17

11/22/2008 6:04 PM
Does a board member need to report all violations or should a possible violation go thru the channells of being reported by a homeowner to a managements company? I guess my question is are members of a board responsible for the policing the neigborhood or is to enfocre rules after being notified of complaints. We are a single family neighborhood and there is could be things in peoples back yards that are possible violations.

MaryA1
(Arizona)

Posts:2504

11/22/2008 6:13 PM
Posted By MikeC6 on 11/22/2008 6:04 PM Does a board member need to report all violations or should a possible violation go thru the channells of being reported by a homeowner to a managements company? I guess my question is are members of a board responsible for the policing the neigborhood or is to enfocre rules after being notified of complaints. We are a single family neighborhood and there is could be things in peoples back yards that are possible violations. Mike, I would suggest speaking with a board member or the prop. mgr to ask what the procedure is. In my assn, I can report a violation directly to our prop. mgr or a board member. Our prop. mgr checks the properties weekly but will also check out violation reported by a member. The BOD is resp. for enforcing the covenants although most covenants state a member may enforce if the board does not. As for policing the neighborhood, IMO, that should be a BOD, A/C committee or PM function, although some boards have a policy of only sending violation notices if a member submits a complaint. Bottom line: it really depends upon what procedure your board has put into place. BTW, may I ask why are you concerned with whatever might be in a person's back yard? Are backyards visible to everyone?

SusanW1
(Michigan)

Posts:2316

11/22/2008 6:20 PM
I guess my question is are members of a board responsible for the policing the neigborhood No, you are not responsible for policing "or is to enfocre rules after being notified of complaints." No, the written procedures should be followed and the system kicks in. In no way should you think you are singularily responsible to enforce. The board should make sure that steps are written, distributed to all members and then procedures gone thru, leading to any enforcement.

MicheleD
(Kentucky)

Posts:1866

11/22/2008 6:22 PM
This is a very good question, and, unfortunately, there is no answer specific to your case that any of us can directly provide to you. It will depend not only on what your particular governing documents say about enforcement obligations or duties or responsibilities, but also what HOA/COA laws may say in your state or municipality. I can, however, share with you what happens on OUR HOA. As a volunteer board of 5 in a community of 300+ homes, the board has no obligation to "police" the neighborhood searching for potential deed restriction violations. We have the right to do that, as does any other member of the association, according to our governing documents, but we don't have the duty to police. Years ago, however, we established the following process regarding deed violations. We are report/complaint-driven in our enforcement. We keep a tracking database recording each and every complaint or report of potential violation. ANY member of the association may report a violation, including board members, but no one is compelled to do so. ALL reports are anonymous. We only record the FORMAT that the complaint came in (such as, phone/voice mail, email, in person, USPS) and the date and time. We will investigate ANY and ALL notices of potential violations. If a violation is CONFIRMED we then issue a first notice of violation as a REMINDER of the CC&Rs and a respectful and polite request to bring the property into compliance by XXX date. ** We then follow up and if the infraction is not corrected, we send a second notice, requesting compliance again, but this time letting them know that the attorney will handle from this point on if compliance is not achieved, and they will be liable for any costs associated with attorney involvement, including court costs if needed. Hope this helps.

MikeC6
(Illinois)

Posts:17

12/03/2008 12:29 PM
I believe we are driven by a homeowner reporting a violation to the management company and then they get a letter. The problem we have had is that a homeowner has violated a rule that states in the section for pools "an in ground pool may be installed in the rear of the lot". He has installed an above ground pool knowing ahead of time that we would challenge it and he does not care. The problem is that it is now in the legal system. It has cost us over 15k so far and we are not even close to a court date. With that said, the rules when interperated by a judge can go either way and if you have a homeowner that is willing to go all the way, then what good are the rules if they are going to cost us so much money to enforce. FYI, we are a small (80 homes) single family subdivision in illinois. That is a lot of money for us to pay and our rules say that we get the money back if we win, but that is also up to the judge and they could say no. It is a tough position to be in. We had to raise the dues $100 just to stay afloat until we get a decision which might not be until mid 09.

MicheleD
(Kentucky)

Posts:1866

12/03/2008 12:41 PM
I say hang in there. We have had a homeowner who installed an above-ground pool challenge our "in-ground pools only" rule, too. We went all the way to a lawsuit, but the homeowner's attorney conceded before trial and they agreed to remove the pool and abide by the CC&Rs. It was a costly game of chicken for them. Here's the thing, we gave them ample time to gather signatures for a petition to place an amendment up for vote to allow for above-ground pools. We went ahead and sent them all the demand for removal letters first, but held off on filing the lawsuit, as a good faith move, to allow them the opportunity to get the CC&Rs changed. The good news for them was that they garnered enough signatures to put the matter on the agenda for a vote. The bad news for them was that they received 9 votes for amending to allow above-ground pools, and 157 votes against. They then refused to take the pool down anyway, which is what triggered the lawsuit to be filed. As I mentioned above, we ultimately did not have to go to court as their attorney did convince them that judges in our area are not inclined to rule against CC&Rs that are as plain and unambiguous as ours is in that type of matter. It didn't hurt that we were able to show no selective enforcement (one of the first defenses they tried to pull) and that we had won 3 cases in court upholding other CC&Rs prior to this lawsuit. Stick with it. I know it seems like a lot of money, but if it ends up strengthening your ability to enforce, it's a good as gold for you in later challenges. If it fails, then it was probably a bad restriction and you can work to make it a more solid one that WILL withstand challenge.

MikeC6
(Illinois)

Posts:17

12/04/2008 12:33 PM
Thanks. That sounds very familiar. The people hired a private detective to go in peoples back yards and take pictures of things they perceive to be violations like a swingset or a hot tub. Nobody has ever complained about either and they are not what I would consider a violation, but we have never had an attorney take a look at it. They are way too determined to win this thing and in the meantime, they are bankrupting the association. It comes to mind that what is the point of the rules if we have tpo spend big dollars to enforce them. Good input.

SusanW1
(Michigan)

Posts:2316

12/04/2008 1:28 PM
Mike - then you can see that their argument will be that the Board did not enforce other violations, and so this "poor guy" is being singled out for a special violation. Hope your paperwork documenting previous violations and their ultimate results are in order. . . AND they are consistent and uniformly applied.

MaryA1
(Arizona)

Posts:2504

12/05/2008 5:11 AM
Mike, I don't know that the "detective work" would hold up in court. The fact that a "perceived" violation of another h/o has not been noticed by the BOD does not mean that same violation cannot be noticed to you. There was an Ofc of Admin Hearing case here in AZ where the admin. law judge ruled in favor of the HOA stating there may be circumstances that would allow a "perceived" violation for one h/o but not another. There may be instances of grandfathering, for one thing. It's best to concentrate on your own property and not worry what is or is not allowed on other member's properties, as you may not be a party to the whole story.

KirkW1
(Texas)

Posts:1190

12/05/2008 5:33 AM
If you really want to rachet up the rhetoric, then support one or more homeowners in suing for the invasion of their backyards. If you have a privacy fence then you have some expectation of privacy. And the hiring of a detective to go into yards and photograph them is a violation of their privacy. The liable parties include the owner who hired the detective, the detective and the attorney if he condoned the action. As for what good are the covenants, well they are as good as they have been written. If they hold in court, then they are good. If not, then they are not. And yes, it depends on the developer and his/her lawyer many years in advance.

MikeC6
(Illinois)

Posts:17

01/05/2009 11:44 AM
That would be an interesting move since there are people that feel violated and some are not even aware that they did that, but they will when they bring it up in court. It is still going on. It has been going on for 18 months now and we are almost out of money What is frustrating is that the person knew the spirit of the rule and has been here since we started in 99. They just want to challenge the rule and in the meantime will bankrupt the association. We will have to cut back on the maintenance now because of them. At some point, I would think the owners of each house have a responsibility to follow the rules.

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