TinoS
(California)
Posts:69
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| 09/04/2010 6:05 PM |
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We are contemplating having a rental restriction amendment. I've asked some other questions about what should be in it and have gotten some good answers.
I am not sure what needs to be in the amendment to insure compliance because I am worried about the liability when the board is not successful enforcing it.
For example:
Owner A decides to move out of their unit and rent it. The amount of owners that are renting is already at the rental restriction limit - 4 units in a 20 unit association. So Owner A would make the fifth rental. Owner A rents the unit. The board informs Owner A that he is breaking the rules of the CC&R but this does not stop Owner A. (He bought the unit years ago and has a low mortgage and low prop tax. He can clear $1500/month collecting rent.)
Owner B decides to sell. He finds out from prospective buyers that the buyers are not able to get loans at an acceptable rate because the association has 25% rentals. Owner B is upset and decides to sue the HOA for negligence in not enforcing the CC&Rs, which he figures is reducing his property value because of that.
Can Owner B win a law suit based on the board's inability to stop Owner A from renting? Could any case for negligence exist?
three questions: in California
1) Can the rental restriction be written with a high enough penalty to discourage unauthorized renting?
2) Can the penalty be enforced by foreclosure?
3) Does the board have a responsibility to enforce the rental restriction and are they liable if they don't try?
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SteveM9
(Massachusetts)
Posts:1442
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| 09/05/2010 12:04 AM |
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buyers are not able to get loans at an acceptable rate because the association has 25% rentals.
Your proubably talking about FHA loans which require low rental rates. From what I have seen, FHA loan rates are actually higher than going though a normal lender, so I'm not buying the "acceptable rate" argument. Its not a legal right for prospective buyers to have access to FHA loans.
You should be more worries about people like me. If you told me I couldnt rent my unit, I would sue the HOA. In fact, some states have laws that that say owners can rent if they cannot sell for the purchase price plus inprovements. You may be in violation of state law if you dont allow rentals.
Either way, if you dont allow me to rent, I'll take my chances with the judge. |
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JanetB2
(Colorado)
Posts:1335
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| 09/05/2010 12:39 AM |
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TinoS:
I would have to say it would surprise me if any state had HOA laws against renting your personal property. If I purchase a property it would be my choice whether or not I want to rent my home. An example would be Aspen, CO which is a large seasonal home area. Most individuals rent their homes/condos during the period of time they do not use said home for their personal use. It would not be right for an HOA to make rules that dictated who I determine could live in my personal home/condo. That is my choice whether it is myself, a relative, friend, or anyone else I give that right. |
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GlenL
(Ohio)
Posts:3526
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| 09/05/2010 12:50 AM |
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Posted By JanetB2 on 09/05/2010 12:39 AM
TinoS:
I would have to say it would surprise me if any state had HOA laws against renting your personal property. If I purchase a property it would be my choice whether or not I want to rent my home. An example would be Aspen, CO which is a large seasonal home area. Most individuals rent their homes/condos during the period of time they do not use said home for their personal use. It would not be right for an HOA to make rules that dictated who I determine could live in my personal home/condo. That is my choice whether it is myself, a relative, friend, or anyone else I give that right.
Janet many HOA's have rental restrictions which as long as they are properly enacted and administered fairly are legal. |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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GlenL
(Ohio)
Posts:3526
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| 09/05/2010 12:55 AM |
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| Tino your questions are best answered by an attorney familiar with HOA's; I suggest you employ one to write your proposed restriction to make sure it complies with all applicable laws and to help the HOA put the policies and practices in place to administer it. While I am not an attorney I do not believe you can foreclose in CA over a fine. |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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JanetB2
(Colorado)
Posts:1335
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| 09/05/2010 12:55 AM |
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| Also, if your CCR has a rental restriction you may want to be sure and check your state statutes and possibly eliminate the restriction. I would think this rule is not fair and equitable because everyone is not treated the same. You should not have a rule where a few could rent their units, but another who may need to desperately rent cannot because four others are already renting. Everyone in this instance is not being treated equally. For some to be able rent their units and others cannot is asking for lawsuits. |
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JanetB2
(Colorado)
Posts:1335
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| 09/05/2010 1:13 AM |
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| GlenL ... Most do have some rental restrictions, but do not eliminate renting. Telling 4 owners they can rent and everyone else can't is not fair administration, which was stated in original post. |
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SteveM9
(Massachusetts)
Posts:1442
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| 09/05/2010 8:14 AM |
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Janet many HOA's have rental restrictions which as long as they are properly enacted and administered fairly are legal.
Until a judge rules against the HOA. You can hire the best lawyer, and have the best documents saying whatever restriction you want. A judge can easily invalidate any of them. Like I said, I would take my chances with the judge. |
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TinoS
(California)
Posts:69
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| 09/05/2010 9:15 AM |
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Posted By SteveM9 on 09/05/2010 8:14 AM Janet many HOA's have rental restrictions which as long as they are properly enacted and administered fairly are legal. Until a judge rules against the HOA. You can hire the best lawyer, and have the best documents saying whatever restriction you want. A judge can easily invalidate any of them. Like I said, I would take my chances with the judge.
Do you know that judges are ruling against rental restriction amendments in California? I have not heard of that happening.
I have contacted four different attorneys about writing a rental restriction amendment to our CC&Rs and they say that case law currently supports rental restrictions within the Davis-Stirling Act, depending upon how it is written.
I have not yet asked those attorneys those questions about enforcement and the liability of non enforcement because they are kind of subtle and will require legal time which we haven't contracted yet. I was hoping to get some opinions here in this forum about that. |
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GlenL
(Ohio)
Posts:3526
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| 09/05/2010 9:45 AM |
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Tino
Here is a url for some case law on the subject including CA: http://www.davis-stirling.com/MainMenu/MainIndex/RentalRestrictionCaseLaw/tabid/1835/Default.aspx |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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SteveM9
(Massachusetts)
Posts:1442
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| 09/05/2010 11:32 AM |
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Do you know that judges are ruling against rental restriction amendments in California?
You would need to do some searching. California law is not totally settled on this. Restrictions against leasing in a common interest development must be shown to be reasonable in order to be enforceable. The requirement of reasonableness derives from California Civil Code Sections 711 and 1354.
Civil Code Section 711 provides:
- Conditions restraining alienation, when repugnant to the interest created are void.
- This statute has long been interpreted to invalidate only unreasonable restraints on the use of land.
Civil Code Section 1354(a) provides:
The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interest in the development. Unless the declaration states otherwise, the servitudes may be enforced by any owner of a separate interest or by the Association, or by both.
At the end of the day you are opening your HOA up to expensive litigation which will take many billable hours to work out, on laws which are not settled.
Not a very good idea in my opinion. Just drop it until California laws are on your side. |
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TinoS
(California)
Posts:69
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| 09/06/2010 11:39 AM |
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SteveM9 in Massachusetts,
Thanks for weighing in on this and I think I do understand your opinion that this might be a very problematic amendment to CC&Rs because the law is not firmly defining "reasonable".
Be that the case I still would like to address the other questions that I've asked because I think they are general questions that could be applied to other areas besides a rental restriction amendment.
Let me put it in a different way - and consider that this is California with the Davis-Stirling laws:
1 and 2) Is there an advantage to defining penalties in the CC&Rs that help enforce the rules because if the penalties are not paid and it is proven to a court that the rules were broken, then the property can be foreclosed? Yes, this is severe but it might need to be, because a simple lien that does not lead to foreclosure might not deter someone who finds a utility to breaking the CC&Rs (that they have signed).
3) When rules are not enforced (and I could see some distinctions being problematic - what is enforcement? - is it sending out letters asking for compliance or it is spending enough on attorney's to win a judgement?) is the board liable for the cost to owners when the rules are not enforced? As mentioned at the top, could an owner successfully sue that the board didn't try hard enough to enforce a rule (rental restriction or any other rule) and because of that the property lost some value?
Thanks. (And yes, I know the standard answer is "talk to a good lawyer".)
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GlenL
(Ohio)
Posts:3526
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| 09/06/2010 12:14 PM |
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Posted By TinoS on 09/06/2010 11:39 AM
1 and 2) Is there an advantage to defining penalties in the CC&Rs that help enforce the rules because if the penalties are not paid and it is proven to a court that the rules were broken, then the property can be foreclosed? Yes, this is severe but it might need to be, because a simple lien that does not lead to foreclosure might not deter someone who finds a utility to breaking the CC&Rs (that they have signed).
3) When rules are not enforced (and I could see some distinctions being problematic - what is enforcement? - is it sending out letters asking for compliance or it is spending enough on attorney's to win a judgement?) is the board liable for the cost to owners when the rules are not enforced? As mentioned at the top, could an owner successfully sue that the board didn't try hard enough to enforce a rule (rental restriction or any other rule) and because of that the property lost some value?
Thanks. (And yes, I know the standard answer is "talk to a good lawyer".)
#1 & 2 In CA you are required to provide a fine schedule to the Homeowners and no IMO you can't foreclose over a fine, you can't even lien over a fine.
Civil Code §1363. Management Authority; Parliamentary Procedure; Notice of Meetings; Records; Member Discipline.
(g) If an association adopts or has adopted a policy imposing any monetary penalty, including any fee, on any association member for a violation of the governing documents or rules of the association, including any monetary penalty relating to the activities of a guest or invitee of a member, the board of directors shall adopt and distribute to each member, by personal delivery or first-class mail, a schedule of the monetary penalties that may be assessed for those violations, which shall be in accordance with authorization for member discipline contained in the governing documents. The board of directors shall not be required to distribute any additional schedules of monetary penalties unless there are changes from the schedule that was adopted and distributed to the members pursuant to this subdivision.
Civil Code §1367.1. Notice of Lien; Priority of Payments; Payment Under Protest; Monetary Penalties.
(e) Except as indicated in subdivision (d), a monetary penalty imposed by the association as a disciplinary measure for failure of a member to comply with the governing instruments, except for the late payments, may not be characterized nor treated in the governing instruments as an assessment that may become a lien against the member's subdivision separate interest enforceable by the sale of the interest under Sections 2924, 2924b, and 2924c.
#3
This from Adams Kessler PLC, aka davis-stirling.com:
Discretion to Sue. Boards have discretion when it comes to the decision to litigate to enforce governing documents. Boards can weigh the cost of litigation, the gravity of the violation, and the likely outcome of the litigation, and make a good faith determination not to litigate a particular violation. Beehan v. Lido Isle.
Failure to Enforce. Associations can be held liable for their failure to enforce the CC&Rs. Owners may sue the association for damages and an injunction to compel the association to enforce its documents. Posey v. Leavitt.
Owner Enforcement. Individual owners may also bring legal action against persons who violate the CC&Rs. Civil Code §1354(a).
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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DonN
(Michigan)
Posts:357
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| 09/06/2010 2:34 PM |
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| Any restriction on rental affects the rights of owners. The authority for the association to create such a restriction needs to be carefully researched. Such a restriction would likely require amendment to the CC&Rs. Since the change may be viewed as fundamental, approval of all owners may be required. |
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Don Nordeen
Governance of Property Owners Associations |
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TinoS
(California)
Posts:69
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| 09/06/2010 7:01 PM |
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Posted By GlenL on 09/06/2010 12:14 PM
Discretion to Sue. Boards have discretion when it comes to the decision to litigate to enforce governing documents. Boards can weigh the cost of litigation, the gravity of the violation, and the likely outcome of the litigation, and make a good faith determination not to litigate a particular violation. Beehan v. Lido Isle.
Failure to Enforce. Associations can be held liable for their failure to enforce the CC&Rs. Owners may sue the association for damages and an injunction to compel the association to enforce its documents. Posey v. Leavitt.
Owner Enforcement. Individual owners may also bring legal action against persons who violate the CC&Rs. Civil Code §1354(a).
Discretion to Sue vs Failure to Enforce sure seem to create quite a bind. I really appreciate your specific comments and the more general ones from others warning me against this. The only thing I can say in favor of going forward is that rental restrictions are being written by well respected (in HOA law) attorneys so I would think they have worked out a strategy for dealing with the problems that you point out. Unfortunately I don't know what they are. I am starting to agree that this rental restriction amendment that we are proposing to the membership might not be worthwhile. I will continue doing more research and asking more questions. |
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SteveM9
(Massachusetts)
Posts:1442
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| 09/06/2010 8:32 PM |
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rental restrictions are being written by well respected (in HOA law) attorneys so I would think they have worked out a strategy for dealing with the problems that you point out.
Just trust the lawyers are doing everything perfect? Um.... NO. LOL. Having a good lawyer does nothing to lessen your chances of being sued. People can sue for any reason.
What do you call a lawyer who just barely graduates and had the worst grades in his class? A lawyer. |
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JanetB2
(Colorado)
Posts:1335
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| 09/06/2010 9:24 PM |
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Many CA attorney sites make the following statement in Q/A pages.
Q. Can the HOA impose restrictions on a homeowner’s right to rent his/her unit or home?
A. Yes so long as they are reasonable and not discriminatory.
OK Tino ... Now that you have asked alot of questions here is one for you as CA does allow restrictions on number of units, but I have not found a case law regarding this particular restriction. It may not have yet been challenged ... but if it is how would you prove "non discriminatory". This one really has my curriosity going as my opinion in order to not discriminate, either no one can rent or everyone is afforded the opportunity with certain restrictions. So ...
Are any of the four individuals allowed to rent friends with a board member?
Are any of the four individuals allowed to rent friends of an association officer?
What parameters would determine who could rent their unit, but another cannot?
What if an owner is in the military and gets transferred overseas, they cannot rent their home while away?
These are the type of questions an attorney would possibly ask.
What if ... You lost your job, had money saved to make your payments for say six months, did not find another job yet had a friend or family you could stay with for a short while. In the meantime, you would be faced with either the option of renting your home to cover the mortgage or foreclosure. Which option would you want to have available? What if something happened to a homeowner, their children inherit, cannot sell in a down market but could rent for a while. They would have the same options either rent or possibly face foreclosure on their inheritance. In today's market be careful what you wish for and what you, your neighbors, or any of your children will face down the road.
Here is an attorney site that has quite a few Q/A similar to yours for your information:
http://www.yourlegalcorner.com/articles.asp?cat=estate&id=86
Also here is an article about the renting situation in CA and possible upcoming legislation regarding ... This year CAR is sponsoring AB 1927 (Knight). In original form it required that it would take a 2/3 vote of an association membership to impose rental prohibition rules.:
http://realestate.yahoo.com/info/news/when-should-an-hoa-be-able-to-restrict-an-owners-right-to-rent-out-his-unit
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TinoS
(California)
Posts:69
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| 09/06/2010 10:34 PM |
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If your question to me is how would someone prove "non discriminatory" I have to answer that I don't really understand the term in this context.
Thanks for the link to AB 1927. It looks like it might make things easier in the future.
But if breaking the CC&R's rental restriction rule is considered a penalty as opposed to an assessment (I think that is a fundamental distinction?) and if non-payment of assessments can trigger a lien, leading to foreclosure, but non-payment of penalties can not, then it sure doesn't seem worth having the penalty. Why would anyone that wanted to rent be concerned about a penalty if they knew the HOA would be reluctant to go through expensive law suits to win non-collectable cases? For me that is the important point.
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JimH5
(Indiana)
Posts:17
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| 09/07/2010 9:21 AM |
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In my opinion and from experience, not to mention some lenders refusing to lend into a high rental community, I feel rental restrictions are a good thing. There appears to be some here who think the CC&R's are just suggestions. When you buy into a community that has rules and regulations you agree to abide by them. If you think you don't have to then you are a problem for the board and other residents. It has never ceased to amaze me why someone would buy into a community and then not want to follow the rules they agreed to.
Jim |
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JanetB2
(Colorado)
Posts:1335
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| 09/07/2010 10:53 AM |
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It is one thing to buy into a community that has rules and agree to abide by them and another to have rules changed, especially without knowledge or consent.
Let me use my community as an example … the CCR’s were changed by Declarant increasing the Declarant rights without any of the current homeowner’s knowledge or voting consent. In essence the Original CCR’s which we agreed to, signed, are attached to, run with, and affect the value of our property were stolen from us. If the Declarant had stolen my car he could be arrested, if he had stolen my identity he could be arrested; however, if he steals our CCR’s which are worth hundreds of thousands of dollars he can get away with essentially theft. The current homeowner’s only recourse is they MUST take it to court. Is this proper justice?
It is one thing to purchase and agree to rules, and another to have one or a handful of individuals in an HOA change the rules to suit their own agenda or beliefs. If you want to “change the rules” be sure to look at all sides of the issue.
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MaryA1
Posts:0
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| 09/07/2010 11:16 AM |
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Janet,
Changing the rules and changing the CCRs are two different things. The CCRs require a vote of the members to change but the board can change the rules with only a majority vote of the board members. You say your declarant changed your CCRs w/o a vote of the members. Usually the declarant is allowed to do this. While in control of the assn, the Declarant usually has the majority votes of the membership as he generally has 2 or 3 votes per unsold lot to each property owner's 1 vote. Thus, he is able to change the CCCrs w/o a vote of the membership. If the majority of the members feel as you do in saying the Declarant "stole" your CCRs, all that needs to be done is to amend them to delete the objectional provisions he put in. Didn't we discuss this on another thread? |
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JimH5
(Indiana)
Posts:17
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| 09/07/2010 12:18 PM |
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I am pretty sure that changing the rental rules to put in a restriction that did not exist when a person bought would require 100% of the homeowners to amend, many others require 80%. Think of the declarant as a dictator, they can pretty much do anything they want to do, I have seen it many times.
Jim |
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MaryA1
Posts:0
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| 09/07/2010 3:29 PM |
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Jim,
In the majority of assn's the BOD has the authority to adopt rules. If the rental restrictions are a part of these rules then changes can be made w/o a vote of the members. Only if the rental restrictions are contained in the CCRs would a vote of the members be required.
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BrianB
(California)
Posts:2381
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| 09/08/2010 1:53 PM |
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Posted By SteveM9 on 09/06/2010 8:32 PM
What do you call a lawyer who just barely graduates and had the worst grades in his class? Your Honor! |
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JohnB26
(South Carolina)
Posts:487
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| 09/09/2010 1:38 PM |
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Posted By JanetB2 on 09/07/2010 10:53 AM
It is one thing to buy into a community that has rules and agree to abide by them and another to have rules changed, especially without knowledge or consent.
Let me use my community as an example … the CCR’s were changed by Declarant increasing the Declarant rights without any of the current homeowner’s knowledge or voting consent. In essence the Original CCR’s which we agreed to, signed, are attached to, run with, and affect the value of our property were stolen from us. If the Declarant had stolen my car he could be arrested, if he had stolen my identity he could be arrested; however, if he steals our CCR’s which are worth hundreds of thousands of dollars he can get away with essentially theft. The current homeowner’s only recourse is they MUST take it to court. Is this proper justice?
It is one thing to purchase and agree to rules, and another to have one or a handful of individuals in an HOA change the rules to suit their own agenda or beliefs. If you want to “change the rules” be sure to look at all sides of the issue.
This possibility was 'spelled out' in the documents you agreed to follow when you purchased into your HOA. IOW: the declarent/developer is in total control until turnover.
CAVEAT EMPTOR |
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TinoS
(California)
Posts:69
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| 09/09/2010 7:49 PM |
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Posted By GlenL on 09/06/2010 12:14 PM
Civil Code §1367.1. Notice of Lien; Priority of Payments; Payment Under Protest; Monetary Penalties.
(e) Except as indicated in subdivision (d), a monetary penalty imposed by the association as a disciplinary measure for failure of a member to comply with the governing instruments, except for the late payments, may not be characterized nor treated in the governing instruments as an assessment that may become a lien against the member's subdivision separate interest enforceable by the sale of the interest under Sections 2924, 2924b, and 2924c.
We have an attorney that has written us a rental restriction amendment to our CC&Rs. I will paraphrase some of the penalty section of what he has written: The Board may record a lien against the unit to enforce payment of said fines and interest. So my question is, is this in conflict with §1367.1 as the law seems to say that liens enforceable by foreclosure can only be placed for non payment of assessments, not penalties..... OR MAYBE the distinction is between liens that are enforceable by foreclosure and liens that are not enforceable by foreclosure? Assuming that the rental restriction meets other criteria of legality, will Davis-Stirling allow a lien to be placed for non payment of the rental restriction penalty but not allow the placement of a lien that can lead to foreclosure? This is a critical distinction for me for two reasons: 1) if the rule that the lawyer has written is in conflict with Davis-Stirling than it is proof that the attorney is not expert enough. 2) if the rule is possible but allows only non forecloseable liens than it wouldn't have the desired punch needed to enforce the rule. |
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MaryA1
Posts:0
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| 09/10/2010 7:29 AM |
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Tino,
Not all liens are enforceable through foreclosure; it all depends upon what your state laws say. In AZ, only delinquent assessments may be foreclosed. Liens may be placed for failure to pay fines imposed for CCRs violations and can only be collected through a judgment. From what you say the laws in CA may be the same. Frankly I see nothing wrong with the statement written by the HOA attorney. |
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TinoS
(California)
Posts:69
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| 10/23/2010 7:25 PM |
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We are still contemplating whether, and how, to do a rental restriction amendment. Today I attended an HOA seminar with presentations by a few attorneys and property managers. The topics were not about rental restrictions but both attorneys in passing mentioned that rental restrictions are becoming their most popular questions.
As I've mentioned in past postings I have mixed feelings about going forward with one, mostly because of the liability if some home owner wants to sue us if they feel we are not enforcing it.
My property manager has told me that if I am worried about this the way to deal with it is to state a penalty in the amendment and then if a owner rents breaking the terms of the CCR amendment the board can fine the penalty for each month that the owner is breaking the rules. Even if we were not actively suing the owner to collect the accruing penalties we would be able to defend ourselves in court against a home owner that tried to sue us for not doing our duty of enforcing the rental restriction. We could state that we are enforcing the rule by fining but are making the decision to not sue based on the cost of sueing and the risk of not being able to collect. That seems logical and gave me a better feeling that we might not be adding liability if we did it that way.
But today after the seminar I asked an attorney about that. I felt very rushed because there were some others waiting behind me so I didn't have time to really get this straight. First off he told me that he is advising against rental restrictions because he thinks they can invite law suits and thinks that market forces eventually keep out renters in our area. But in answer to my question about whether fining would be good enough he pointed out that fines should be levied after a board meeting with the owner invited and that means we would have to have board meetings each month, inviting the owner, which he says would be impractical. I didn't take the time to try to follow up.
So this question is about how penalties in general work.
Is he correct that each time the board levies a penalty for breaking the CCR, and where the penalty for that infraction is defined in the CCR, and is published each year, does the board have to have an open board meeting with the owner invited to attend, to levy the fine? I am not familiar with the process because to my knowledge we have never levied penalties for breaking CCRs - other than penalties for late payment of dues.
Tino |
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TimB4
(Virginia)
Posts:3247
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| 10/24/2010 3:51 AM |
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Posted By TinoS on 10/23/2010 7:25 PM
Is he correct that each time the board levies a penalty for breaking the CCR, and where the penalty for that infraction is defined in the CCR, and is published each year, does the board have to have an open board meeting with the owner invited to attend, to levy the fine? I am not familiar with the process because to my knowledge we have never levied penalties for breaking CCRs - other than penalties for late payment of dues.
Tino
I haven't read CA law so can not speak specifically to them. However, IMO, there is always a hearing before instituting fines. |
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MaryA1
(Arizona)
Posts:388
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| 10/24/2010 9:24 AM |
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Tino,
Whether a hearing is required b/4 a penalty/fine can be assessed would be dependent upon what your CCRs and/or state law say. Since this requirement was mentioned by an attorney, it must be a CA state law requirement and would be worth your while to check out. In AZ, there is state law which requires the member to be allowed "to be heard", meaning meet with the board, b/4 a penalty/fine can be assessed for a CCR violation. The hearing must take place at an open board meeting because this topic is not one that may be discussed in a closed session. Most people who receive violation notices do not request a hearing, but the few that do are asked to come to the next board meeting to state their case. |
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