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PauG
(Maryland)

Posts:44

11/26/2008 6:33 PM
If a homeowner in your Association had an big ugly black asphalt sidewalk installed that went from the street, through common area, through their side yard to their gate, what would you do? This person did not seek Board approval, which it is stated in our Guidelines and Covenants that homeowners must get approval to install sidewalks. Some of the Board feel we need to tell them to have it removed. I think at least they need to have the portion in the common area removed, the grass replaced. The problem in our Association is people are ignoring the guidelines and covenants and doing whatever they want. We send them letters and the Board and the property management company are ignored. In that case, should we take legal action? Our covenant says if there are violations and the homeowner refuses to act, we can send someone onto the property and then charge the homeowner 1 1/2 x the amount. Since 1982 this has never been done. What if people refuse to pay the bill. Small claims next?

SusanW1
(Michigan)

Posts:2316

11/26/2008 6:50 PM
You ALREADY have the rule: "Our covenant says if there are violations and the homeowner refuses to act, we can send someone onto the property and then charge the homeowner 1 1/2 x the amount." You just need the backbone. Good news is that ONCE the board acts, people will see that those covenants really are going to be enforced. Just make sure you have clear and concise procedures for enforcing your own convenants.

BruceF1
(Connecticut)

Posts:696

11/27/2008 8:06 AM
Posted By PauG on 11/26/2008 6:33 PM action?Our covenant says if there are violations and the homeowner refuses to act, we can send someone onto the property and then charge the homeowner 1 1/2 x the amount. Since 1982 this has never been done. What if people refuse to pay the bill. Small claims next? You'd have to read your documents, but the part you mentioned (above) indicates to me that you can hire someone to remove the sidewalk and restore the area to its original condition and then charge the homeowner 1 1/2 times what it cost to do this. From there I'm guessing that according to your documents that charge becomes a special assessment on the unit and a lien can be placed against the unit, and in some states, you can even foreclose if the lien is not paid. You just need to get tough. First, you need to send a letter to the homeowner outlining the requirements and the consequences if the homeowner doesn't comply. If the homeowner ignores the letter from the board, you just hire someone to remove the sidewalk and bill the homeowner requiring payment by a certain date, as I said before. If the bill remains unpaid, you send another letter indicating the consequences if ignored. It then may be necessary for the association's attorney to write a letter to the homeowner, tacking on the cost of having the attorney do this. Faced with possible legal action, the homeowner will likely comply. If not, the homeowner would (if smart) consult an attorney of his/her own who would either confirm that the homeowner should comply or that, for some reason I can't see at this point, the board has no case. I just read a court case where a homeowner was fined somewhere in the low hundreds for a violation. The homeowner refused to pay. It eventually wound up in court, and when it was through it ended up costing the homeowner over $14,000 for the fines, interest, court costs and the association's attorney fees. That doesn't include the cost for the homeowner's attorney's fee, which probably came close to the same amount.

BruceF1
(Connecticut)

Posts:696

11/27/2008 8:13 AM
I might add that it probably doesn't matter if this has not been done before. Most documents stipulate that because a provision hasn't been enforced in the past that doesn't preclude the association from enforcing it now. However, that doesn't mean you can let a specific violation by a homeowner continue for years and then decide to enforce it, especially if it results in greater cost for the homeowner than it would have if you had enforced it earlier.

PauG
(Maryland)

Posts:44

11/27/2008 8:18 AM
I appreciate everyone's reply. I heard from our property manager, and she said a homeowner called her a while back about putting in a ramp for a wheelchair-bound child. Hmm, why would anyone have a wheelbound child in a townhouse? She told the homeowner they needed to submit the plans to the Board for approval. She never received any plans. If this is indeed a case where a child is in a wheelchair, I think we will need to compromise. There may be legal rights that they have due to the Americans with Disability Act. Does anyone know does this Act override HOA covenants? If this was the case in your Association, what would you do?

BruceF1
(Connecticut)

Posts:696

11/27/2008 9:16 AM
Posted By PauG on 11/27/2008 8:18 AM I appreciate everyone's reply. I heard from our property manager, and she said a homeowner called her a while back about putting in a ramp for a wheelchair-bound child. Hmm, why would anyone have a wheelbound child in a townhouse? She told the homeowner they needed to submit the plans to the Board for approval. She never received any plans. If this is indeed a case where a child is in a wheelchair, I think we will need to compromise. There may be legal rights that they have due to the Americans with Disability Act. Does anyone know does this Act override HOA covenants? If this was the case in your Association, what would you do? You do have to make reasonable accomodations for people with disabilities. Why a wheelchair-bound child lives in the townhouse is not at issue as long as you are not an age-restricted community.

RobertR1
(South Carolina)

Posts:2523

11/28/2008 2:15 AM
Paul, Contact you county Disabilities Office and discuss this with them. They can quote chapter and verse. But, your post sort of hints you have a lot of other problems with enforcement in general. So I suggest you tackle this problem with MC and BOD for action. To now be willing to accept the big black ugly sidewalk because there is a handicap person involved raises some motive questions for you. Was it just the one sidealk you cared about? If it was a cement sidewalk would you have raised a quiestion? Looks like both should have been discussed and approved by the association. Is there a problem there?

MaryA1
(Arizona)

Posts:2504

11/28/2008 6:56 AM
Posted By PauG on 11/26/2008 6:33 PM If a homeowner in your Association had an big ugly black asphalt sidewalk installed that went from the street, through common area, through their side yard to their gate, what would you do? This person did not seek Board approval, which it is stated in our Guidelines and Covenants that homeowners must get approval to install sidewalks. Some of the Board feel we need to tell them to have it removed. I think at least they need to have the portion in the common area removed, the grass replaced. The problem in our Association is people are ignoring the guidelines and covenants and doing whatever they want. We send them letters and the Board and the property management company are ignored. In that case, should we take legal action? Our covenant says if there are violations and the homeowner refuses to act, we can send someone onto the property and then charge the homeowner 1 1/2 x the amount. Since 1982 this has never been done. What if people refuse to pay the bill. Small claims next? Pau, If members who are in violation of the declaration are ignoring violation letters then they need to be receiving fines (if that is allowed in your docs). If the fines go unpaid then collection procedures should be instigated which may result in court action. The BOD cannot let these blatant violations go unanswered. They must act appropriately against each violator. As far as the assn curing the violation and billing the member for the cost, I would only do this as last ditch effort and only after the member has been notified of the procedure and also of the exact day when the work will be performed. This cost, together with any unpaid fines all become part of the assessment lien. Depending upon the laws of your state, these delinquencies may be subject to foreclosure. Every member of the assn should be given a copy of the assn's collection procedure which outlines the steps that will be taken to collect delinquent assessments and any charges incurred when a member is in violation of the declaration. If the assn does not have a collection procedure, I would suggest they draft one, adopt it and mail it to all members of the assn ASAP!! If the sidewalk that was installed by the member does NOT meet the requirements of the Architectural guidelines then the member must be instructed to have it removed and replaced by one that does meet the guidelines. The member should also be instructed that they do NOT have the authority to make any changes to any portion of the common area, meaning they CANNOT construct the sidewalk through the common area. They should also be advised to remember that any changes made to their property must first be approved by the architectural committee. When in doubt, contact the architectural comm. chairman first! Some assn's impose a fine for all improvements made w/o first obtaining approval, even if the improvement would have been approved by the architectural committee. My assn can impose a fine of $1,500 for this. If the member who is in violation of constructing the sidewalk claims the sidewalk was constructed to accommodate their wheelchair bound child, then the BOD should make themselves familiar with the Fair Housing Act and the Americans with Disabilities Act. I don't believe the provisions of the Americans with Disabilities Act will apply unless the assn makes their facilities available to the public or rents them out to the public. However, the Fair Housing Act may apply. In which case, the assn would be required to allow the member to make a reasonable accommodation and to pay for the cost. A "reasonable accommodation" may include extending the sidewalk through the common area. This may be an issue best discussed with an HOA attorney.

GlenL
(Ohio)

Posts:1469

11/28/2008 7:32 AM
Paul if this is truly connected with a disability, my advice is to tread very lightly and consult an attorney before enforcing on this particular issue. There is a very good publication that concerns HOA's and disabilities, it can be found at the link below. Note one of the things it does cover is that an association cannot require more expensive materials; however it must conform to local building codes. http://www.usdoj.gov/crt/housing/fairhousing/reasonable_modifications_mar08.pdf

MicheleD
(Kentucky)

Posts:1866

11/28/2008 7:46 AM
Glen, I could be wrong, but I think the asphalt sidewalk and the wheelchair ramp are two different homeowners and two separate issues.

GlenL
(Ohio)

Posts:1469

11/28/2008 7:51 AM
Michele they both go to access and if the government gets involved they love to levy fines. This sidewalk may very well not be covered the document clearly states it does not cover all contingencies but in this case I would ask first to keep from paying later.

MicheleD
(Kentucky)

Posts:1866

11/28/2008 8:02 AM
I don't follow you. If the sidewalk were constructed on common area property, regardless of whether they were supposed to get prior approval or not, then it seems a pretty cut-and-dried violation. I'm not sure how it fits in with the document you provided a link to. It sounds like the sidewalk is not the type that's in front of a house, but rather a personal sidewalk from the front, running through the common area, to the side yard of the homeowner. But, like I said, I could be wrong. Your link is a good one, I was just clarifying that I think the two issues are completely separate homeowners.

KirkW1
(Texas)

Posts:1190

11/29/2008 6:24 PM
... Hmm, why would anyone have a wheelbound child in a townhouse? ... First, don't ever say such a statement int he open. The statement will inflame people and could well cost your association a large sum of money. While you may wonder, others will wonder why you would wonder. Further, I will tell you up front that if I were on a jury I would look at you closer if such a statement were made in court. (The statement itself wouldn't damn you, but it would certainly not help you. It would make me more inclined to believe that you might discriminate.) ... If this is indeed a case where a child is in a wheelchair, I think we will need to compromise. There may be legal rights that they have due to the Americans with Disability Act. Does anyone know does this Act override HOA covenants? If this was the case in your Association, what would you do? The first thing I would do is to call in the lawyer to look over every decision made. And to ensure that every I was dotted and every T crossed. Having said that, I would not assume that I had to give any and everything up. What is required is "reasonable accommodation." If the walk (or ramp) can be placed on the owner's property in such a way that it is safe and effective then you can (and perhaps should) require it be placed there. As for how to enforce and collect the money should you chose self help, the answer is that you would place a lien on the home if they refused to pay. Then unless their home os foreclosed on, you will eventually get the money.

FrancescaM
(Washington)

Posts:112

12/02/2008 5:55 PM
Posted By SusanW1 on 11/26/2008 6:50 PM You ALREADY have the rule: "Our covenant says if there are violations and the homeowner refuses to act, we can send someone onto the property and then charge the homeowner 1 1/2 x the amount." You just need the backbone. Good news is that ONCE the board acts, people will see that those covenants really are going to be enforced. Just make sure you have clear and concise procedures for enforcing your own convenants. Susan is right on this one... this must be enforced.. the board must move forth..

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