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MichelleW4
(Colorado)

Posts:17

03/04/2010 11:32 AM
Hi everyone, We have a legal threat from a homeowner regarding nuisance warning and fines that were sent for repeated late-night noise incidents. We've already forwarded it to our lawyer but they usually take a few days to respond and I thought I'd ask around if anyone else has had this problem while we wait. Basically, our fine schedule is warning/$75 2nd offense/$150 3rd offense/$300 4th offense. In this case we actually sent a couple warnings first. Now that they've moved into the fines, they are making the legal argument that each instance is independent of the other. The reasoning is that when you are cited for a nuisance violation, the form letter that the manager sends says that you have 14 days to correct the violation. I guess the homeowner's thinking is that because the violation (a party) was "corrected" within the two week time period, that it was "closed out" and that they shouldn't be fined because they corrected it. They also contend that subsequent violations stand on their own, rather than being consider 2nd or 3rd violations - again, since the original violation was "corrected". Seems like a real twisting of logic to me. Of course, by the time someone receives the letter you'd expect that the violation would have been "corrected" and that the party hasn't actually continued for two weeks, right? Has anyone ever had this challenged before or have any thoughts on the validity? From our Rules: NOISE AND NUISANCE: No nuisance, noxious or offensive activity shall be allowed on the property, nor any practice that is the source of annoyance to residents or that interferes with the peaceful enjoyment or possession and proper use of the property by its residents. This includes the playing of musical instruments, stereos, video games and/or televisions at a volume which disturbs other residents or a neighboring unit. QUIET HOURS: It is expected that all condominiums and outdoor areas will be especially quietduring “Quiet Hours” which are 10:00 PM – 9:00 AM. FINES: Upon the first violation of any of these rules an initial warning will be sent. A $75.00 fine will be assessed to the owner for the 2nd violation, $150.00 for the third violation and $300.00 for the fourth and subsequent violations.

DanielH1
(California)

Posts:350

03/04/2010 1:28 PM
I don't think that it is cut-and-dried. The offender's interpretation is unusual but not absurd. If the offender gets a friendly judge, maybe the judge buys his argument or uses some technical language to cut the offender some slack. If the HOA gets a friendly or neutral judge, the offender pays the full amount. If he does sue, don't forget to remind your lawyer to ask for the offender to pay lawyer's fees, as well.

GlenL
(Ohio)

Posts:2942

03/04/2010 2:08 PM
Michelle how is the violation letter written? Ours specifies if a violation of the same type occurs within a year then it is an automatic fine.

Associations are full of willing homeowners, some willing to volunteer and the rest willing to criticize. Author unknown but very perceptive.

MichelleW4
(Colorado)

Posts:17

03/04/2010 2:34 PM
This is the warning letter. There is no fine for a warning, obviously, but the letter clearly states that the problem must be corrected within 14 days. In the example of a gas grill (prohibited) that means the owner would get a 14 day grace period to remove the item. At the end of the 14 day grace period, they are liable for a second letter with a fine if the problem persists. ------------------- "It has recently been noted that you may not be in compliance with the legal documents of the Association. This was first noted on (date). It is recognized that perhaps you are unaware of the following violation of the Association's legal documents: Nuisance; Noise. Please refrain from allowing noise to emanate from your home that may be offensive to others. Complaints from neighbors that on (date) there were party noises and stereo from 9 p.m. to 1 a.m., which is after quiet hours. If the violation is not corrected, a $75 fine may be imposed against you. Your prompt correction of this violation is appreciated. It is anticipated that you will correct the above violation by (date + 14 days). Please contact your Community Manager if you wish to schedule a hearing with the Board on this matter. If you do not request a hearing by (date + 14 days), the Board will assume that you are waiving your right to a hearing." --------------------- The letter doesn't state anything about recurrences in the future, nor do our covenants put a time limit on recurrences. Therefore, a recurrence is considered a second (or third, fourth) offense. Although unofficially, we consider anything after six months to be a new situation and we go back to the warning stage. Ex: Jan 1, grill noted on patio, warning letter sent, "you have 14 days to correct the problem or you'll be fined $75". If grill is gone by Jan 14, no fine. If grill is not gone by Jan 14 then second letter plus $75 fine. If grill is gone by Jan 14th but re-appears on Jan 25th, then it is considered a second occurence of the same offense and receives the $75 fine.

TimB4
(Virginia)

Posts:530

03/04/2010 3:51 PM
Posted By MichelleW4 on 03/04/2010 2:34 PM "It has recently been noted that you may not be in compliance with the legal documents of the Association. This was first noted on (date). It is recognized that perhaps you are unaware of the following violation of the Association's legal documents: Nuisance; Noise. Please refrain from allowing noise to emanate from your home that may be offensive to others. Complaints from neighbors that on (date) there were party noises and stereo from 9 p.m. to 1 a.m., which is after quiet hours. If the violation is not corrected, a $75 fine may be imposed against you. Your prompt correction of this violation is appreciated. It is anticipated that you will correct the above violation by (date + 14 days). Please contact your Community Manager if you wish to schedule a hearing with the Board on this matter. If you do not request a hearing by (date + 14 days), the Board will assume that you are waiving your right to a hearing." Michelle, I would suggest rewording some of the notice. Perhaps the following: Original: If the violation is not corrected. Suggestion: If this violation continues Suggestion: Failure to comply with this guideline can result in Original: It is anticipated that you will correct the above violation by (date + 14 days). Suggestion: It is anticipated that you will correct the above violation by [mm/dd/yyy] and that the infraction will not occur again. Future infractions of quiet hours will be considered a failure to comply with this warning. Hope this helps, Tim

JackB8
(Virginia)

Posts:89

03/04/2010 4:12 PM
Michelle. I watch Matlock and Court TV all the time. These folks did correct the condition they got the warning for within 14 days. So what? Even if they corrected the problem after 13 days but within your 14 day limit, there followed a second (yes-independant of the first) incident. Then they did it again, and again, and again -hence the fines. The only thing your HOA might do is delete the 14 day condition from the violation letter (does not really apply to ""disturbing the peace". I say you let them go to court so they can pay the fines, legal fees and court costs. Fine them enough and they will quiet down or move, or do something really stupid and serve jail time.

BrianB
(California)

Posts:2043

03/04/2010 9:01 PM
do they have a point? yes, perhaps. Is it valid? they might, just might, find a person or a judge who agrees. I think it unlikely. were i actually your lawyer (and i am not anyone's lawyer), i would simply remind said judge that such logic would make almost every law in the US a mass of stupidity. Your Honor, I agree i drove drunk last week. But that was a different event than driving drunk this week. they are not related at all, and the person i killed last week was a separate incident from the one i killed this week. they got a violation for disturbing the peace, essentially. are they really saying that unless they continued the same noise level/disturbance for two months, it's a new and totally different event, and not related? good. my dog bit your kid last month. and unless he continues to bite your kid, you can't increase my fines, because it's a new bite... good luck with that.

RobertR1
(South Carolina)

Posts:5152

03/04/2010 11:15 PM
Michele, Let's go back and look at what this is all about. I think the restrictions are within reason and the penalties are also reasonable, however one can apply them. However the purpose of the restriction is to maintain a time of peace in the neighborhood, this is well withing the control of the association, at least I think so. If the subject that is causing the problem stops his actions and ceases and dissists (as they say), who cares about the fines. If the guy ignores the purpose of the restriction, and continues to do so, don't get hung up on the fine, take him to court for violating the intent of the restriction. You all just want him to shut up and stop disturbing the neighborhood.

MaryA1
(Arizona)

Posts:6875

03/05/2010 7:03 AM
Michelle, I think the problem lies with giving the violator 14 days to correct a nuisance, especially a noise nuisance stemming from a party. It's unlikely the party will last for 14 days! The violation letter should not give a period to correct, because by the time the violator receives it the party is most likely over. Instead the violation notice should say the nuisance must be corrected immediately. Then it should go on to state that if this type nuisance occurs again it will be considered a 2nd offense and a fine of $$$ shall be levied. In AZ, the requirement is to inform the member that they have a right to dispute the violation and can contact the BOD at XXXXX. This must be done b/4 a fine can be levied. Concerning the member's logic, I don't think it's that far off the wall. Unless you state that all violation notices for the same type violation will be treated as recurring violations, they should not be considered that way. For example, if a member receives a violation notice for parking on the street and removes the vehicle immediately, then that violation has been cured. Then 2 weeks later he again parks on the street. That is not the 2nd occurrance, instead it is again a first occurrance of the parking violation. The same applies to this noise violation. Each party was a separate violation of the noise restriction, unless the member had been informed that it would be handled differently. One point to remember is that once a violation has been cured within the time specified that particular violation is over; there cannot be a 2nd, 3rd, etc occurrance. This is just my opinion, of course. I am not an attorney nor do I have any legal training.

MichelleW4
(Colorado)

Posts:17

03/05/2010 7:35 AM
Thanks, everyone for your opinions! I should clarify a few things... BrianB: EXACTYLY! And even though she may argue that the issue was "corrected" by the time she received the letter and so she shouldn't be fined, the letter says nothing about a recurrence. In the case of a gas grill I gave above, it doesn't matter if they remove the grill and then put it back three weeks later - it doesn't even matter if it's a different grill, it would be a recurrence either way. Otherwise, people would get a warning, take the grill inside for a few days, and put it back outside until they get another warning. There would never be fines or enforcement if each incident stood by itself. Mary, in the example you gave where someone receives a warning for parking on the street... we don't have that rule ourselves, but if we did then yes, if they moved the car and then parked it back on the street a few days later it would actually be a second offense. Robert, I agree with you. The fines don't benefit me at all, directly, we just want the noise down. I forgot to mention that this has happened several times in this unit, which is rented out, which is why we're making efforts to really enforce the rule. Lastly, this property manager manages two condos which are rented out. Three times we've contacted her with some problems to be resolved and each time she threatens to sue us. So, while I don't particularly care about the fines strongly, we don't want to get intimidated by her phony legalese and let her off the hook, lest she learn the lesson that all she has to do is try to muddy the waters and threaten to sue every time there's a problem. thanks again for your advice, i'll let you know what we hear from the lawyer.

RobertR1
(South Carolina)

Posts:5152

03/05/2010 8:57 AM
MichelleW, Your latest post certainly gives a little different picure and it appoears it more neessary to go back to Basics. First, the infractions, after the acute problem is solved, should be done by the Board informing the owner of the property of his responsiilities. Assuming this is covered in your documents, and the lease the renter signed has been filed at the association office. Not sure how your documents address this renter issue. but most likely it is all owner responsibility to keep his tenants under control. So clarify that first. Your members are not paying their fees for the association to manage rental property. That would be unequal and unfair. Your PM sounds like more of a problem than a help. The fact, if I read right that you allow your PM to service rental properties is something to avoid, but the Board should solve this. Frankly the Board is well within their rights to call the cops on anyone disturbing the peace, and they are mandated to preserve the peace of the association I would ask your property manager to put in writing her threat to sue you, and then fire her. for cause. You can't have any employee use the threat of a law suit to influence any Boards decision. She presents a threat to the association. The Board hired her, the Board can fire her. Look at her contract, it may even be you are locked into something the Board will need a lawyer to get you out of. Frankly, my opinion is you are all off the track and need some adjustments.

MichelleW4
(Colorado)

Posts:17

03/05/2010 9:11 AM
Hi Robert, I mis-communicated. The property manager I wrote of was hired by someone who owns condos here, not by the board. We hire a management company which is separte. This woman is a local realtor who was hired to do condo/apartment management by one of our owners who rents his condos. Sorry for that mixup!

RobertR1
(South Carolina)

Posts:5152

03/05/2010 9:49 AM
Hi MichelleW4, Since this is the day before "Fire everyone Saturday," we may have to fire her also. She is a rental agent, she rents property that other people own for a living, that's all she is, she has no more rights than I do if I walk on the Property, once she leaves the unit, she is on common property and the BOARD controls common property. I am in a condo, we have rental units and rental agents, it benefits the association if a harmonious relationship is maintained with these agents. These agents know they do not run the train, if they don't it is the owners responsibility to insure they do. The owner of these properties does not absolve himself of his responsibilities that he agreed on when he purchased the property, there is nothing written that would allow this Rental Agent to have owner responsibility. If she has a problem she should inform her employee (owner) and he would be responsibility to work out differences with the Board. IMHO

MichelleW4
(Colorado)

Posts:17

03/05/2010 10:32 AM
Hahaha, "Fire everyone Saturday"... I like that idea!! But, unfortunately, our covenants allow a homeowner to assign an "agent" to represent his property and take over his vote. Could be a lawyer, property manager or friend. At this point, I think the owner has no vote legally, he has given his right to her so she has to represent him at the meeting. They're also not allowed to go back and forth, tag-team style. The HOA will only deal with one representative for each condo, and he's chosen her.

JerrellC
(Florida)

Posts:75

03/05/2010 9:47 PM
MicheleW4 Boy am I glad I don't live in a condo. It sounds like there's more problems and restrictions with condo living. Even a grill on a patio? that seems very restrictive to me. I live in a HOA stand alone homes in Florida. If there is a neighbor with loud music from a party in the quiet time hours generally after 11 PM we just call the police and they shut them down after that time. If they contunue after a warning by the police and they return later they will be subject to arrest and taken to jail period. There's also a noise ordinance over certain decibels that's not allowed. However we do have two articles in our restrictions that deal with noise under article VI Nusances. No obnoxious or offensive activity shall be allowed upon the common areas, nor any use or practice which is the sourse of annoyance or nuisance to owners or guests which interferes with the peaseful possession and proper use of the common areas by owners. Also under restrictions affecting lots par 4. Says no affensive Activities. No illegal, obnoxious or offensive activity nor any nuisance whatever shall be permitted or carried on in any part of the property, nor shall anything be permitted therein which will become an annoyance to the neighborhood. This covers a great deal of things that could go with a neighbor. Loud constantly barking dogs,Loud chain saws, etc. The problem is with these lenghtly well written restrictions there's no penalty or fine given for continuing the activity. That's one thing that was left out. I suppose the board will have to come up with a warning letter and fine if it continues to happen. JerrellC

GlenL
(Ohio)

Posts:2942

03/06/2010 3:55 AM
Posted By JerrellC on 03/05/2010 9:47 PM MicheleW4 Boy am I glad I don't live in a condo. It sounds like there's more problems and restrictions with condo living. Even a grill on a patio? that seems very restrictive to me. Jerrell, because of denser living conditions condo rules are necessarily stricter. If your grill causes a fire at your home you assumed the risk however in a condo not only are you risking your dwelling but those of your neighbors. In many places (check local listings) the state and / or the county are changing the fire code to make the use or storage of grills over a certain size or type illegal within X number of feet of a multiple residence dwelling.

Associations are full of willing homeowners, some willing to volunteer and the rest willing to criticize. Author unknown but very perceptive.

MichelleW4
(Colorado)

Posts:17

03/06/2010 7:29 AM
Thanks Jerrell, For the record, this is my first condo and I will never buy one again! I find the quality of life to have been better in apartment buildings, can you believe that? I think the reason is that so many people here rent their condos out yet there is no central screening and many of the landlords live out of state so their tenants do whatever they want. This is also one reason why we have begun telling people not to just call the police, but also report problems through the HOA so that we can track which landlords are the worse and deal with them more aggressively. We have a no-gas or charcoal grill policy on our patios because due to the size of the patio it's not physically possible to place them as far from the building structure as the local fire code requires, therefore they are illegal. Plus, someone started a small fire with one a few years ago. Michelle

MaryA1
(Arizona)

Posts:6875

03/06/2010 7:59 AM
Michelle, How is my example of the parked car any different than your example of the gas grill? IMO, they are both second offenses. As I said, one the violation is cured it is over with and any subsequent offenses (even a violation of the same restriction) is a second offense. Now the board can have a policy that if the same offense is violated w/i so many days, weeks, months, whatever, it will bear an automatic fine.

MichelleW4
(Colorado)

Posts:17

03/06/2010 8:10 AM
Mary, I thought you said that putting the car back two weeks later was NOT a second offense. So I said that in our condo it would be considered a second offense. Maybe I misunderstood your post, sorry. Technically, per our covenants, there is no expiration date for offenses like the grill on the patio. If they removed it for three months and then put it back, it would still be a second offense (not a "new" situation). But unofficially, if someone goes for six months without any repeat offenses then we'd consider their slate cleared.

JerrellC
(Florida)

Posts:75

03/06/2010 9:02 AM
GlenL As I said said I'm glad I don't live in a condo. I need more breathing room. I also use my grill in my back yard often with parties. Hey I also have a 40 ft x 12 ft screened patio that I built myself. Lots of room yea and a large backyard and a 2000 sq ft garden in sunny Florida.

JerrellC
(Florida)

Posts:75

03/06/2010 9:13 AM
Thanks MichelleW4 Se my reply to glen below. I need lots of room. I don't like feeling closed in. We have parties occasionally and need the room. JerrellC in sunny Florida

MaryA1
(Arizona)

Posts:6875

03/06/2010 4:00 PM
Michelle, Sorry, I misunderstood you. But, I think you don't understand what it means to cure a violation. Cure means to correct -- to mend a breach. Once a violation has been cured that's the end of it. If the same violation occurs again it may be a second offense but not in the sense that a fine would apply. Of course not all boards work the same way; however, whatever applies should be so stated in the fines policy so that the members know what to expect.

JackB8
(Virginia)

Posts:89

03/06/2010 4:19 PM
Mary. I got educated too by your post. I thought if I got written up by our HOA for having a disabled, unlicensed vehicle on my lot and then moved it and brought another in in it's place,that would be a second offense.

MichelleW4
(Colorado)

Posts:17

03/06/2010 4:54 PM
Mary, How would your way of interpreting the rule apply to parties that last until 2am? Are you saying you'd consider each incident distinct and not send any fines at all? Using the car example, if the person gets a warning for the car and then doesn't move it, you would eventually send a fine, right? But if the person gets a warning, moves the car and then moves it back a week later you would just send another warning? How does that provide enforcement if everyone can just move their car for a little while and then eventually move it back? I wonder if you are dealing with homeowners who are naturally more respectful of the rules and a courtesy letter than our tenants seem to be. Our letter says "please correct this violation within 14 days" in order to give people time to fix things that could take time to fix and/or to get in touch with and have a talk with their tenant. For example, if they didn't realize we had a grill rule it gives them time to sell or move the grill. In the case of a broken patio door, it gives them a grace period to get a handyman, etc. In the case of the party, it goes without saying that the party will have been "corrected" by the time they receive the letter (I hope!) but it gives them time to deal with their tenant. However, the correction of that original violation affords them no protection should it recur - and our letter doesn't state that it will.

MaryA1
(Arizona)

Posts:6875

03/08/2010 3:45 AM
Michelle, I'll say it again; once the violation is cured it's over with. However, the policy can also state if a violation has been cured but is repeated w/i 30 days, or whatever, it will be considered a second offense and subject to a fine. The problem with your violation letter is in giving the member 14 days to correct a noise violation. Why would anyone need 14 days to turn the volume down, or, as in this case, end the noisy party? I'm guessing the violation was cured b/4 the member even received the violation notice. I agree there are many violations that require time to cure, but most noise violations are not one of them. Actually by giving them 14 days to cure you're, in a sense, allowing them to have a party every day for 14 days. Providing a "grace period" means allowing the violation to continue for that stated period of time. IMO, for this type violation, the notice should state it must end "immediately upon receipt of this notice". If the situation involves a tenant, IMO, the notice doesn't have to give the property owner time to deal with a tenant since the party most likely was over b/4 the notice was received anyhow and a member in violation doesn't need any time to deal with it. Of course, this is just my opinion on the topic. Whatever works for your assn is the course of action you should take. However, you do have a member disputing the fines because they feel each incidence was a new violation. Your policy only states 1st, 2nd and 3d violation and the applicable fine; it doesn't say the same violation being repeated, even if cured, means it will be considered a 2nd violation and carry the applicable fine.

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