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Subject: Who do I sue - owner and/or tenant - for violating CCR&S??
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DougF3
(California)

Posts:8


07/14/2020 12:24 PM  
Hello: I have an owner violating the CC&Rs by using the unit as a short term rental business. We plan on pursuing litigation as the fines are not working. Do I also name the tenants as part of the lawsuit, and sue them too?

I am in California.


Any thoughts?
KerryL1
(California)

Posts:7397


07/14/2020 12:36 PM  
What size are your fines? In my part of CA in an urban coastal city, our fine is $1,000 per infraction. Another HOA has fines for that violation at $5,000.

What are your fines? Is the owner paying the fines?

If you do sue the owner, it's only that person. Your hOA has no contract with the tenant so the owner's the one. But wouldn't you have to go through IDR first?
MarkW18


Posts:1290


07/14/2020 12:40 PM  
Posted By DougF3 on 07/14/2020 12:24 PM
Hello: I have an owner violating the CC&Rs by using the unit as a short term rental business. We plan on pursuing litigation as the fines are not working. Do I also name the tenants as part of the lawsuit, and sue them too?

I am in California.


Any thoughts?



As we would not be representing the HOA in court, seek advice only from a lawyer.
DougF3
(California)

Posts:8


07/14/2020 12:51 PM  
Our fines are only $250 - max. We have held a disciplinary hearing and decided to fine the owner $250/daily. The owner has paid $0.00 of the fines. Litigation is the next step after we submit the matter to ADR.

I just wanted to see if suing the tenant who is engaged in this behavior is the way to go. It seems like the owner is playing the blind ignorance card, and is claiming no involvement or knowledge with how the lot is being used.

MelissaP1
(Alabama)

Posts:9446


07/14/2020 12:53 PM  
Does your HOA have a fining schedule? Is this defined in your CC&R's for short-term rentals? Are they on record at the courthouse reflecting this?

The tenants are not members. Only the owner is a member. Thus you could only "sue" the owner. However, check into other options outside of a lawsuit. Like restricting access to common area/amenities. Which means the renter may not be able to use them if the owner isn't allowed.


Former HOA President
DougF3
(California)

Posts:8


07/14/2020 1:09 PM  
Our small community is composed of 20 single-family homes. We do not have a common area or amenities. I wanted to explore how to force the tenants into compliance. I understand that we are only in privity of contract with the owner under the CCRs. The owner claims that they will evict the tenants once the moratorium on eviction is lifted in California. However, we cannot wait on that, and need to take some proactive measures to resolve this. The owner's reassurances mean nothing.

Any other suggestions would be appreciated.

KerryL1
(California)

Posts:7397


07/14/2020 1:44 PM  
We had an owner play the ignorance card too but, living back ast, he probable was unaware that his tenet was renting out the master bedroom suite plus living area for a good sum. He did evict his tenant and withheld the fine amount from his tenant's deposits.

You don't need to have fine amount list in your CC&Rs, as Melissa states, but that $250 has to be listed somewhere. Sounds like your HOA may be too small to have any amenities to withdraw, but if you do AND your documents permit it, hold another hearing and withhold such privileges for a couple of months.

I'm not up to date on the eviction restrictions. Do they apply when tenants don't comply with the Owners' rules? Or are trashing the premises?

MarkW may be right, you may have to hire a attorney to help you handle this.

Curious about your need to rush this along. Are the short-timeers breaking other rules? Noise rules, for instance, or parking rules? If so, call the owners to hearing on these violations too and fine him.
DougF3
(California)

Posts:8


07/14/2020 2:16 PM  
Thank you for the input everyone. The fines are meaningless without the bite. We could fine the owner $1,000,000 a day and it would be ignored. We have counsel are working towards ADR right now.


Does anyone know how the owner can get his tenants to comply short of eviction? I'm just trying to predict how this issue will resolve/end short of eviction.

AugustinD


Posts:3683


07/14/2020 2:46 PM  
Posted By DougF3 on 07/14/2020 1:09 PM
Our small community is composed of 20 single-family homes. We do not have a common area or amenities.
Can you confirm that your community is not subject to California's Davis-Stirling statute?
Posted By DougF3 on 07/14/2020 1:09 PM

I wanted to explore how to force the tenants into compliance. I understand that we are only in privity of contract with the owner under the CCRs. The owner claims that they will evict the tenants once the moratorium on eviction is lifted in California. However, we cannot wait on that [snip]
Why can't you wait?

First, if there were no pandemic, you and your neighbors could only sue the landlord for violation of the covenants.

Second, this is a pandemic.

Third, determining when the eviction moratorium applies is somewhat complicated. For the sake of argument, let's assume the moratorium does apply in this case. For certain members of your community to threaten suit against the landlord for doing something the law does not allow him to do is unconscionable (in these unusual times). No, no and no. Stop now. If you do not, then what you all are facing is a lot more legal costs than usual. Even worse, judges and arbitrators are facing conditions never heard of before. I would never bet on your side prevailing. If I were the judge, I'd be steaming that you and your neighbors brought suit to evict someone (again, assuming the moratorium applies).

You may not understand about this pandemic. Others do.

Fourth if these tenants are violating the covenants via say noisiness or how they park their cars, go ahead and sue the owner for violation of the covenants.

If you can say what it is the tenants are doing that makes you want to go after them, then this might help people here give advice.


DougF3
(California)

Posts:8


07/14/2020 2:57 PM  
We are subject to Davis Sterling.


The unit is being used as a short term rental operation/hotel. This violates the CC&RS. The owner is not trying to come into compliance. So, we have to sue. Eviction is one answer, but there are alternatives. For example, the owner could ask his tenants to stop advertising on short term rental websites like hotels.com, and etc. I don't want to evict anyone. I just want the property to come into compliance. How the owner does that is entirely up to him.

MarkW18


Posts:1290


07/14/2020 3:07 PM  
Posted By DougF3 on 07/14/2020 2:57 PM
We are subject to Davis Sterling.


The unit is being used as a short term rental operation/hotel. This violates the CC&RS. The owner is not trying to come into compliance. So, we have to sue. Eviction is one answer, but there are alternatives. For example, the owner could ask his tenants to stop advertising on short term rental websites like hotels.com, and etc. I don't want to evict anyone. I just want the property to come into compliance. How the owner does that is entirely up to him.




Have you contacted the city in which you reside and ask if they have a restriction on short-term rental. I had a case end of last year in which the city took care of the issue with one visit from their code enforcement department.
DougF3
(California)

Posts:8


07/14/2020 3:09 PM  
Yes. The City has been notified. Code Enforcement has done nothing. This violation has gone on for more than one year. A lawsuit is the last option. This is not something that we take lightly. We have tried to explore all options before considering a lawsuit.

We are open to more ideas/suggestions.
AugustinD


Posts:3683


07/14/2020 3:26 PM  
Posted By DougF3 on 07/14/2020 2:57 PM
We are subject to Davis Sterling.
Davis-Stirling statute does not apply to those communities that have no common areas. You posted you have no common areas or other common amenities. Maybe I am missing something. Why is it you think your community is subject to Davis-Stirling?

Posted By DougF3 on 07/14/2020 2:57 PM
The unit is being used as a short term rental operation/hotel. This violates the CC&RS. The owner is not trying to come into compliance. So, we have to sue. Eviction is one answer, but there are alternatives. For example, the owner could ask his tenants to stop advertising on short term rental websites like hotels.com, and etc. I don't want to evict anyone. I just want the property to come into compliance. How the owner does that is entirely up to him.
Thank you for clarifying. Can you please confirm: Is the lease that the owner has with the tenant a long term lease that does not, by itself, violate the covenants?

In my opinion, and as others have noted, you only have recourse against the owners, not any of the tenants. But I think this is still a legally sticky situation. E.g. suppose the tenants (who are offering the home for short-term rental) derive significant income from renting short-term. But your group wants them to stop renting short term. Now the tenant meets one of the criteria for the eviction moratorium.

I think I am back to my earlier position: Your community can either wait until the moratorium is lifted, or it can spend a lot more than usual to deal with this situation.

Two cents.


TimB4
(Virginia)

Posts:16850


07/14/2020 3:34 PM  
Doug,

You do not have a contract (the CC&Rs) with the tenant, you have a contract with the owner.


The owner is responsible for the actions of the tenant (their guest).

That said, talk to an attorney.
MarkW18


Posts:1290


07/14/2020 3:36 PM  
Does your city have a restriction on short-term rentals. If they don't, reporting the owner will get you nowhere.
MelissaP1
(Alabama)

Posts:9446


07/14/2020 4:12 PM  
You can NOT speed up the legal process of evicting anyone. Especially now during the pandemic. Even the owner is restricted by "Tenant's rights" to evict. The HOA has not a thing to do with the Tenant and thus can not evict anyone's tenant. That is up to the owner whom has certain legal obligations.

I had a bad tenant. Did not pay me rent, worked on motorcycles on my carpet, and moved a baby Emu into my backyard! Took me 5 months to evict him. My 1st attempt did not do it right. 2nd attempt you have to give a 10 business days for INTENT to Evict. Another 10 Business days of eviction. Add on another 2 weeks BEFORE I could contact the Sheriff's office to remove their belongings/them. That is the LEGAL Process. Plus had to account for holidays and weekends.

A tenant can actually stop paying rent up to a year and not be evicted. A tenant is under no obligation to follow the HOA rules UNLESS that is written into the lease agreement. Which means even the owner can not evict if they violate rules if not put into the lease.

So no your not going to get this situation to stop anytime soon. Legal restraints and not your impatience is going to rule.

Former HOA President
MarkW18


Posts:1290


07/14/2020 4:36 PM  
Doug

I would take Melissa's strong legal advice as she is an expert in California law, hell, all states law for that matter.
MelissaP1
(Alabama)

Posts:9446


07/14/2020 4:45 PM  
No one can post information about how every state or city works. Use your own mind and stop with "not in my state" crap. You should be talking to a lawyer in your state/city anyways.

Former HOA President
MarkW18


Posts:1290


07/14/2020 4:48 PM  
Posted By MelissaP1 on 07/14/2020 4:45 PM
No one can post information about how every state or city works. Use your own mind and stop with "not in my state" crap. You should be talking to a lawyer in your state/city anyways.



Actually some of us can by doing some research!
DougF3
(California)

Posts:8


07/14/2020 4:50 PM  
I am not relying on an eviction. Eviction is not the answer given the current situation. We just want the owner to come into compliance and stop the tenants from using the home as a short term rental. A lawsuit is our only hope to collect the fines, and hopefully have the owner modify the tenant's behavior. We will sue the owner. Thanks for the input everybody.
JeffT2
(Iowa)

Posts:548


07/14/2020 5:01 PM  
This is a statement from https://www.davis-stirling.com/HOME/Renter-Violations

" CC&Rs will sometimes have a broad statement that the document is binding upon "each member, tenant, resident, and occupant" and each has a duty to follow the association’s governing documents. If so, penalties may be levied against tenants as well as owners for rules violations."

The CC&Rs can be enforced directly on tenants, as long as the CC&Rs have that statement that they are binding on tenants.

The CC&Rs are a kind of contract with the tenant.

That said, it is usually easier and more common to fine the owner.

You also look here:

https://www.davis-stirling.com/HOME/Renter-Menu
KerryL1
(California)

Posts:7397


07/14/2020 5:38 PM  
Jeff of Iowa found a good citation for you, Jeff. Our CC&Rs have no such statement, but maybe yours do. Take another look.
BenA2
(Texas)

Posts:758


07/14/2020 8:44 PM  
CC&Rs are attached to the land so only owners are bound by them. Tenants are bound by their lease which is between them and the owner. So, you would sue the owners, not the tenants.
SheliaH
(Indiana)

Posts:3358


07/15/2020 5:54 AM  
If the association attorney is handling this, get out of his/her way and let them do what they do. Unfortunately, these things don't move as fast as you might think they do, even without a pandemic. As AugustinD said, these are the times we live in, so unless these folks are doing something criminal that the police might address, it appears you don't have any choice right now but to wait. I suspect the offsite owner knows that too, which is why he/she is blowing you off.

And speaking of the pandemic, a quick Googling of evictions during the pandemic would give you useful information - here's what I found when googling "evictions and pandemic California"

https://www.nolo.com/legal-encyclopedia/coronavirus-covid-19-california-eviction-bans-and-tenant-protections.html


I'm sure this was also discussed on your TV news and newspaper - take a look at those next time


LetA
(Nevada)

Posts:997


07/15/2020 6:20 AM  
Posted By MarkW18 on 07/14/2020 3:07 PM
Posted By DougF3 on 07/14/2020 2:57 PM
We are subject to Davis Sterling.


The unit is being used as a short term rental operation/hotel. This violates the CC&RS. The owner is not trying to come into compliance. So, we have to sue. Eviction is one answer, but there are alternatives. For example, the owner could ask his tenants to stop advertising on short term rental websites like hotels.com, and etc. I don't want to evict anyone. I just want the property to come into compliance. How the owner does that is entirely up to him.




Have you contacted the city in which you reside and ask if they have a restriction on short-term rental. I had a case end of last year in which the city took care of the issue with one visit from their code enforcement department.





Has your board reached out to such web hosting sites and informed them that the property in question is in violation of said covenants? Airbnb for example is very proactive and will delist the rental.
DougF3
(California)

Posts:8


07/15/2020 9:18 AM  
At LetA, that might be a good idea - too bad it's not listed on AirBnb. The property is listed on a variety of other sites.
KerryL1
(California)

Posts:7397


07/15/2020 11:05 AM  
Perhaps some of the other sites have a similar policy as does Airb&b.

Good idea, LetA.
FredS7
(Arizona)

Posts:927


07/15/2020 11:23 AM  
Your only agreement/contract/issue is with the owner.

GeorgeS21
(Florida)

Posts:2902


07/16/2020 8:33 AM  
But, perhaps there is a strategy, that while not likely to result in legal action, could involved the tenant in something they find distasteful or that might require them to pay for legal support - include them in the suit and see what happens?
JeffT2
(Iowa)

Posts:548


07/16/2020 8:52 AM  
I'm not sure why this may be difficult.

If the CC&Rs say they are enforceable on tenants, then guess what? The CC&Rs are enforceable on tenants.

Just because the CC&Rs are enforceable on owners, does not mean they cannot also be enforceable on tenants.

If Doug has that in his community's CC&Rs, then they can get a court order to stop the short term rentals (after ADR and other due process steps).

I'm not saying that is going to be cheap or the best approach.

Whether a 'contract' exists with the tenant is academic (depending on the broader definition of contract and CC&R), but there can be restrictions in the CC&Rs that are binding and enforceable on tenants.

My previous post quoted a California attorney's opinion stating this. The documents for my community also have it. I have seen it in state law for some other states.
KellyM3
(North Carolina)

Posts:1529


07/16/2020 9:10 PM  
You can't enforce standards on a tenant that apply to the owner of property. The property purchase established the legal agreement between the owner and the HOA.

Unless the tenant signed the same deal, leave them out of this. Likely, the HOA can win the case and the tenant be allowed to reside on-site until the lease runs out. The tenant rented an available unit. If anything, they're a victim.
MarkW18


Posts:1290


07/16/2020 9:14 PM  
Posted By KellyM3 on 07/16/2020 9:10 PM
You can't enforce standards on a tenant that apply to the owner of property. The property purchase established the legal agreement between the owner and the HOA.

Unless the tenant signed the same deal, leave them out of this. Likely, the HOA can win the case and the tenant be allowed to reside on-site until the lease runs out. The tenant rented an available unit. If anything, they're a victim.



Actually, if it is in the CCRs, then yes, you can go after the tenant. It is a contract, the owner agrees to abide by. It is standard boilerplate language used by California attorneys since 2010.
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