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Tuesday, July 14, 2020











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Subject: common area clutter
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LaskaS
(Texas)

Posts:312


06/14/2020 1:07 PM  
I know our ccrs's are rules about storing personal items i common areas. here is my question. The policy is clearly written. However the policy is almost universally not enforced. Exception would be a health hazard or trash etc.

A resident had an antique baker milling road writing desk in a common area walkway for several years. noone every complained or said anything. The owner was intending to restore and refinish it. It was out of the way and noone every said anything.

About 6 months ago. The resident was asked by their neighbor to move the desk out of the walkway, because he was in the process of showing his unit and the potential tenants had mentioned it.

The resident obliged and moved the desk downstairs in a limited common area that is out of site and would protect it from the rain.

Apparently,, sometime in the past couple of weeks. The property manager or a board member had the desk thrown out. The property manager and board member both knew who owned the desk.

my question is, what recourse does the owner have. It turns out it was an original Baker Furniture milling road writing desk. The resident has pictures and appraisal values etc.

I know our rules and regulations are clear. however regarding one is not supposed to store things in limited common areas..etc.,however the hoa has not enforced the rule.. the desk has been there for sometime. I've seen it myself. It was definitely a limited common area, but it was out of site and did not obstruct any access .

The owner has hired a lawyer ..

I would think the board could rely on the written rules and regulations as defense. however.. several website i have read state that the owner should have been given notice and ample time to remove the desk . Especially since the rule in general is not enforced and it has been there for a while without complaint..

I'm sure our hoa attorney would love to handle it. $$$$.. however.. In my opinion, the owner does have a valid argument. (see above)..

I'm sure this has happened before in other HOA.s does anyone have experience as a board member dealing with this. Any advice?
LaskaS
(Texas)

Posts:312


06/14/2020 1:10 PM  
correction,, The owner has not yet hired a lawyer. He sent a letter to the board with the appraisal and wants the hoa for the value of the desk.
CathyA3
(Ohio)

Posts:1077


06/14/2020 2:07 PM  
I agree that the owner probably has a case. Even though it was a violation, the association should have a procedure for handling such things. The procedure usually includes one or more notices, followed by (possibly) fines, removal of said item at the owner's expense, and the like.

For what it's worth, our attorney recommends moving people's belongings to a storage area if after you've gone through the notice period with no response, and any storage expense should be passed on to the owner. I wouldn't feel safe getting rid of anything unless the owner moves out with no forwarding address, at which point you could probably assume that the item has been abandoned.
CathyA3
(Ohio)

Posts:1077


06/14/2020 2:13 PM  
Forgot to mention, in my condo association, one person finally moved her junk after the third notice in which we said that we would remove the items at her expense. And we've towed a junk vehicle that had been abandoned (we are a tow-away zone, with appropriate signage at the community entrance).

I'm afraid your HOA is going to have to compensate the person for the value of the desk - it's probably less than paying the lawyer. The board messed up by not following proper procedures.
KerryL1
(California)

Posts:7333


06/14/2020 2:17 PM  
the owner probably does have a case as Cathy suggests, no matter if the item was stored in a common area or limited common area, or what the item is. I'm amazed that the annual fire marshall inspection didn't cite the HOA for permitting anything to be stored in the walkway.

The rules against such clutter in our City's Condos are for the safety off emergency personnel to avoid trip hazards, blocking of their equipment, etc.
GeorgeS21
(Florida)

Posts:2816


06/14/2020 4:54 PM  
I would just offer an apology ...does anyone really think the owner is going to hire an attorney?

Nice a formal apology is offered, then wait them out.

If it goes to court, once the owner has paid for their attorney, fold early, and offer and apology, again.

Years sitting in the walkway?
AugustinD


Posts:3495


06/14/2020 5:15 PM  
Posted By LaskaS on 06/14/2020 1:07 PM
the property manager or a board member had the desk thrown out. The property manager and board member both knew who owned the desk.
[snip]
several website i have read state that the owner should have been given notice and ample time to remove the desk . Especially since the rule in general is not enforced and it has been there for a while without complaint.
Whoever threw the desk out owes the owner the value of the desk. A chat should be had with the manager and the one director to see if she or he is responsible. If the manager did this, then (1) the board should advise the manager that it believes he/she should pay for the value of the desk, then see what the manager says; and (2) the board should make a note in the manager's annual review about this incident.

If the director did this, then he did not do so with board authority. The board should tell the owner that the HOA was not responsible for the discarding of the desk. Should the board speak to the director about this? I think so. The board should ask the director whether he felt he was acting on behalf of the HOA. If the director says he felt he was acting on behalf of the HOA, then the Board should explain to the director has no legal authority to do this, since a board majority did not vote for him to do this.

Else the board should stay out of this dispute.
LaskaS
(Texas)

Posts:312


06/14/2020 10:14 PM  
If it turns out the Manager is the one who instructed the desk be thrown out.

I'm sure she's going to respond that she didn't know whose it was.

Does the board itself have any authority to garnish a portion of each paycheck until the owner is paid off.

If not and the manager just ignores the owner and doesn't pay for the desk..

then what.

Is the hoa responsible for the manager's mistake made during the course of their job. They were acting as the manager, however, they had no authority to have something thrown out without property notification etc.
MelissaP1
(Alabama)

Posts:9413


06/15/2020 4:52 AM  
This can be a police issue. The owner is responsibe for collecting their damages. Which could be going after the HOA whom has to go after the manager.

The HOA has no right to anyone's social security #. So garnishing one's wages is a bit difficult to do.

Former HOA President
AugustinD


Posts:3495


06/15/2020 6:22 AM  
Posted By LaskaS on 06/14/2020 10:14 PM
If it turns out the Manager is the one who instructed the desk be thrown out. I'm sure she's going to respond that she didn't know whose it was. Does the board itself have any authority to garnish a portion of each paycheck until the owner is paid off. If not and the manager just ignores the owner and doesn't pay for the desk.. then what. Is the hoa responsible for the manager's mistake made during the course of their job. They were acting as the manager, however, they had no authority to have something thrown out without property notification etc.
You wrote that, at the time of disposal, the desk was in a limited common area. A limited common area is typically assigned to an individual owner. Whose limited common area?

Is the manager an employee of the HOA, such that the HOA issues the employee her paycheck every two weeks (or once a month)? Or does the HOA pay a management company, which in turn pays its employee every two weeks (or once a month)?

The manager is a legal "agent" of the HOA. As an agent of the HOA, and As CathyA3 and KerryL1 wrote, I believe legally, the HOA can be held liable for mistakes made by the manager. I also think the Board should inform the HOA insurer of this mistake. If push comes to shove, and the owner goes to (small claims?) court, I believe the right legal course of action, when it comes to naming defendants, would be to name the HOA and the manager as defendants.


AugustinD


Posts:3495


06/15/2020 7:47 AM  
Posted By AugustinD on 06/14/2020 5:15 PM
Else the board should stay out of this dispute.
If this was the manager's fault, then I am backpedaling from the above statement.
SheliaH
(Indiana)

Posts:3307


06/15/2020 10:39 AM  
What Cathy said, but if this was some sort of antique, why on earth was it sitting out in the common area anyway? For several years??????? Even if no one said anything, this is indoor furniture, not a BBQ grill or a
lawn chair, or anything else you'd expect to see outside. And if it's that valuable, why not put it somewhere where it would be more secure - who's to say a stranger wouldn't stroll by, recognize it and then make off with it?
MelissaP1
(Alabama)

Posts:9413


06/15/2020 3:19 PM  
Considering it was antique and not new the value may not be much. Can't access the "restored" value of what it could have sold for. It has to be the actual value of the item as is. Which sounds more like came from a Thrift Shop. So person can't expect anything but the value of the object via Thrift shop value or what they paid for it via receipt.

If this person thinks they are going to get some kind of large amount think again. Antique doesn't really mean much in a court of law in regards to loss of value. Considering it's condition.

Former HOA President
GeorgeS21
(Florida)

Posts:2816


06/15/2020 4:51 PM  
Apologize, leave a bottle of bourbon at their door, and wait for the owner’s next move.

Everyone here is being nice, but I suspect it was junk.
LaskaS
(Texas)

Posts:312


06/16/2020 12:11 AM  
the owner has an previous appraisal value.. it was not junk.
Don't ask me why it was there. i'm just asking if the board is going to have to pay for it.
LaskaS
(Texas)

Posts:312


06/16/2020 12:16 AM  
the area that the desk was in was a covered little cubby area that each building has.. it's about a 6 x 6 space between fenced back patios.
again. I'm not saying it's a good idea that the owner had the desk there. I'm asking if he has a legitimate claim against the hoa..
I think the manager should at the very least have notified the owner that it needs to be moved. There are several of these 6 x 6 spaces throughout the property that other owners have stored larger items .
I know they shouldn't be there. but the fact that the board never enforced this rule. I don't see how we can say, we decided to start enforcing it and didn't tell anybody and by the way threw out your item.
LaskaS
(Texas)

Posts:312


06/16/2020 12:18 AM  
cathy,, thanks for the response.. i like the way your attorney advised you all to handle it..
LetA
(Nevada)

Posts:989


06/16/2020 6:15 AM  
You mention that the desk in question was in a common area and moved to a limited common area, correct? At no time was this ever on private property? If the desk was never on private property then the owner is SOL. PERIOD. I am quire confident your governing documents are quite clear on debris left in common areas and the associations right to remove them.
CD6
(Texas)

Posts:29


06/16/2020 9:01 AM  
While the CC&Rs are clear, the lack of any enforcement in the past
will raise a question. I think if it goes to court, you will be looking at a "selective enforcement" type of deal.
SheliaH
(Indiana)

Posts:3307


06/16/2020 9:19 AM  
It would be one thing if other people kept stuff in the common areas for a long period of time with no consequences, and there's no indication that happened here. To me, the primary issue here is that the HOA didn't send the man an ultimatum - remove the desk from the common area within X number of days or it'll be removed and placed in storage at his expense. Not addressing the issue for several years doesn't help the HOA either - why was it seen as a problem now and not several years ago when the desk first arrived?

Of course, the counter to that could be - you parked this desk in the common area for years and years - it doesn't take that long to refinish anything, so when were you planning to actually do it? If that was your intent, why didn't you just put it in storage or somewhere in your own home?

CCR enforcement can be a tricky thing - some things may become more of an issue at various times for various reasons, so just because a specific rule hasn't been enforced doesn't always mean it's rendered unenforceable. Perhaps there was no reason to enforce that rule because it wasn't seen as a problem at the time. In this case, the issue started when the man's neighbor asked about the desk because he was trying to sell his unit and a prospect asked about it.

This is why if CCRs go unenforced and a new board decides enough is enough, I think the best approach is to tell homeowners (1) everyone agreed to comply with this rules when they purchased their home (2) it's true enforcement has been lax, none-existent or selectively enforced in recent years (3) this is about to change because the CCRs exist to preserve the overall look of the community and we all want to live in a clean, safe and attractive one with rising property values. Effective (X date), there will be more CCR enforcement, especially in the areas of A, B, C. Here's how we'll do it, here's how you'll be notified of violations, your appeal rights and what happens if you don't comply.

That gives people a chance to clean up their act, ask questions or even start a conversation about updating the CCRs - perhaps some are outdated, unenforceable, don't address new issues, or simply need a tweak. From there, the board might commission an advisory committee to look at some or all of the CCRs and make recommendations homeowners could consider before voting to amend the documents.




JohnC46
(South Carolina)

Posts:9577


06/16/2020 12:02 PM  
I say the desk should not have been trashed without some type of notice to the owner. Even a brief timeline like 3 days but at least some notice. That said, I do not believe the BOD should reimburse the owner. Maybe the PM should as they ordered it removed.
GeorgeS21
(Florida)

Posts:2816


06/16/2020 8:03 PM  
Apologize, scotch instead of bourbon.

Wait it out.

Appraisals of junk happen all the time. If bit was left out that long, it was junk.

Move on.
LaskaS
(Texas)

Posts:312


06/18/2020 1:05 AM  
I must have explained incorrectly. The desk was moved. It originally had been on the upstairs breezeway that accesses the back doors of the condos. Apparently about 4 months ago. the man's neighbor asked him to move it . The man complied and moved it downstairs to a limited common area that happened to have cover from the elements.

We found out today that the property manager did on her own decided to start enforcing the rules and regulations. there was no notice sent to the owners. The board also didn't instruct the property manager to do anything.
The board thinks the property manager should have to deal with the angry owner. However, the board is more concerned about the half hazard nature of the property manager instructing anything to be thrown away without proper notice.
GeorgeS21
(Florida)

Posts:2816


06/18/2020 5:27 AM  
I would be concerned about the wasted time continuing to talk about it.

Place your bet and wait.

It was junk and doesn’t matter.
SheliaH
(Indiana)

Posts:3307


06/18/2020 6:13 AM  
Like I said in your post about the vendors - the property manager works for the association at the board's direction, not the other way around. I know you don't like the property manager, but it seems to me you and your colleagues appear to be content to let her make decisions like this- until the caca hits the fan - and then you get mad at her.

Rule enforcement is part of what HOA boards do, and you knew this desk had been in the common area for years and years. It doesn't matter that no one complained - this was an indoor item and shouldn't be in the common area in the first place. Why didn't any of you go to the owner and tell him to move it? If the man didn't have any room in his home for it, it could have been placed in a storage unit for however long he wanted it to be there.

I'm beginning to agree with George - maybe this thing really was a piece of junk. If the man had it appraised and it was worth a decent amount, why in hell would anyone keep it where it could have stolen or damaged? In any case, I think the board SHOULD deal with this owner - if you want to pay damages, take a vote and be done with it. Then have a chat with the property manager regarding roles.

And send a notice to ALL homeowners reminding them the common area is not for storage - put your crap in your own home or rent a storage unit. In fact, decide now how the board is going to address rules violations because it would appear you've been as haphazard as the property manager. Send another message to the homeowners about that and let the chips fall where they may.
GeorgeS21
(Florida)

Posts:2816


06/18/2020 2:57 PM  
Thanks, Shelia.

New I can reduce the offer to cheap bourbon 😚
JohnT38
(South Carolina)

Posts:337


06/18/2020 4:36 PM  
Posted By GeorgeS21 on 06/18/2020 2:57 PM
Thanks, Shelia.

New I can reduce the offer to cheap bourbon 😚




I would suggest Mad Dog 20 20.
SueW6
(Michigan)

Posts:705


06/18/2020 5:35 PM  
Surely something so “valuable” would have been insured.

He should turn it in to his insurance company as stolen.

Just like it was a bike or potted plant.
SheliaH
(Indiana)

Posts:3307


06/19/2020 5:30 AM  
Posted By JohnT38 on 06/18/2020 4:36 PM
Posted By GeorgeS21 on 06/18/2020 2:57 PM
Thanks, Shelia.

New I can reduce the offer to cheap bourbon 😚




I would suggest Mad Dog 20 20.





Nah, MD 20/20 is what you drank in high school (yes you did, admit it!) when you were young and stupid, and didn't have good taste.

I prefer a nice bottle of Malbec, although I did buy some Jim Bean on sale recently to use as a marinade for steak (very tasty and you only tasted a hint of the bourbon...it had a teriyaki vibe to it because o the soy sauce)
MichelleG7
(Connecticut)

Posts:12


06/19/2020 10:33 PM  
In looking at this. IF the desk was left outside for years then it must not of meant much to the owner and it must not be worth much. Or at least now it isnt cause its been outside getting damaged from the weather. that is the way I would take on this. apologize it cant be replaced and it certainly is not worth all that much. So offer a little bit of money. And if he goes to court prove it was not worth much and left out in the weather to be damaged. That's how I would handle this. And lastly either the BOD needs to follow the rues for the common areas or make rules to follow. So this does not happen again. Be fare for all.
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