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Subject: Your thoughts about treaspassing on private road?
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Author Messages
KarenT
(Washington)

Posts:248


08/26/2010 1:03 PM  
Our small subdivision (12 houses in a culdesac)is a private road - access to all properties is via this private road. If a homeowner has two liens on their property for non-payment of road assessments, dues and collection costs, can the association file a lawsuit against that homeowner for trespassing on the private road?

We are in the process of meeting with the HOA attorney to discuss options. Yes, we have tried to collect to no avail. This homeowner has no intention of paying and it is obvious due to her behavior and the arrogance she exhibits. She already has personal judgments against her for approximately $11,000, utilities shutoff notices and one foreclosure by her mtge company (which was put on hold). The collection agency indicates that because she is on social security disability there is nothing to attach. The HOA President had to file a anti-harassment suit against this homeowner because of personal threats and vile phone messages to the president as well as the HOA attorney. The homeowner never showed up to any of the court dates. She violated the court order by contacting the HOA president and did go to court for that.

It's a sad situation, but the rest of us (single income homeowners) are subsidizing this homeowner and something has to be done. We have had to increase dues from $45.00 per month, hire a mgmt company because no one will deal with her. Our dues have increased to $100.00 per homeowner per month and will now increase to $150.00 per homeowner per month to cover the collection and attorney costs.

Any comments or suggestions would be appreciated!

DonnaS
(Tennessee)

Posts:5671


08/26/2010 1:12 PM  

Karen,

I think that you would find that the HOA can fine and take away use of any of the amenities but you MAY NOT stop the ingress and egress of a property owner. In other words, you cannot block him from accessing his home.
KarenT
(Washington)

Posts:248


08/26/2010 1:15 PM  
Posted By DonnaS on 08/26/2010 1:12 PM

Karen,

I think that you would find that the HOA can fine and take away use of any of the amenities but you MAY NOT stop the ingress and egress of a property owner. In other words, you cannot block him from accessing his home.




Isn't the "use"of the road considered an amenity? We have fined and fined and fined and she still will not pay, the only "amenities" are the road, lawn care and snow removal. We are at our wits end.
SteveM9
(Massachusetts)

Posts:3599


08/26/2010 1:57 PM  
Yes, we have tried to collect to no avail........she already has personal judgments against her for approximately $11,000, utilities shutoff notices and one foreclosure by her mtge company (which was put on hold).


You said you tried to collect and she has other judgements against her, but have you sued and received a judgment against her? If you don't, you really haven't "tried" to collect. Although you cant be jailed for a not paying a civil matter like real estate. You could proceed with foreclosure, that might work. In the end, you may end up eating the back dues.

No you cant block access. Its a private road, but its deeded to her and the HOA. If you block access in any way, she can sue for damages. You will loose.
KarenT
(Washington)

Posts:248


08/26/2010 2:17 PM  
Posted By SteveM9 on 08/26/2010 1:57 PM
Yes, we have tried to collect to no avail........she already has personal judgments against her for approximately $11,000, utilities shutoff notices and one foreclosure by her mtge company (which was put on hold).


You said you tried to collect and she has other judgements against her, but have you sued and received a judgment against her? If you don't, you really haven't "tried" to collect. Although you cant be jailed for a not paying a civil matter like real estate. You could proceed with foreclosure, that might work. In the end, you may end up eating the back dues.

No you cant block access. Its a private road, but its deeded to her and the HOA. If you block access in any way, she can sue for damages. You will loose.




We have tried to collect without having to sue her, but I guess that's why we are finally going to see the HOA attorney. What good is a judgment when you can't collect on it either? She just gets to still drive on the road, have her lawn mowed, sprinkler system winterized and snow removal all done for free while the rest of us pay for it and hers as well!
JohnB26


Posts:0


08/26/2010 2:33 PM  
you may not prevent the HO from using the road to access their own home

however, you CAN prevent the HO from accessing OTHER homes on the road

eg. homes are no. 1-12 on the way in .... HO is no. ?4?, then HO would be tresspassing if accessing home 7 ... enforceable? better get a P.I.
KellyM3
(North Carolina)

Posts:1488


08/27/2010 6:13 PM  
Foreclose....that's how you end the traveling down a private road trespassing issue.
MaryA1


Posts:0


08/28/2010 1:22 PM  
Kelly,

Foreclosure would be the last step taken to deal with a delinquent owner. Some states have laws stating when an HOA may foreclose. In AZ the delinquency must be at least one year old or $1,200, whichever comes first. So, foreclosure is not something that can occur right away. Sometimes just the threat of foreclosure will get the member to pay up. Also, in many instances when the HOA is at this juncture they find out that the bank is about to foreclose and/or the member is filing for bankruptcy. The BOD should hire an attorney to handle the really bad delinquentcy cases. They can check credit ratings, bankruptcies and bank foreclosures.
MaryA1


Posts:0


08/28/2010 1:23 PM  
Kelly,

Foreclosure would be the last step taken to deal with a delinquent owner. Some states have laws stating when an HOA may foreclose. In AZ the delinquency must be at least one year old or $1,200, whichever comes first. So, foreclosure is not something that can occur right away. Sometimes just the threat of foreclosure will get the member to pay up. Also, in many instances when the HOA is at this juncture they find out that the bank is about to foreclose and/or the member is filing for bankruptcy. The BOD should hire an attorney to handle the really bad delinquentcy cases. They can check credit ratings, bankruptcies and bank foreclosures.
MaryA1


Posts:0


08/28/2010 1:23 PM  
Kelly,

Foreclosure would be the last step taken to deal with a delinquent owner. Some states have laws stating when an HOA may foreclose. In AZ the delinquency must be at least one year old or $1,200, whichever comes first. So, foreclosure is not something that can occur right away. Sometimes just the threat of foreclosure will get the member to pay up. Also, in many instances when the HOA is at this juncture they find out that the bank is about to foreclose and/or the member is filing for bankruptcy. The BOD should hire an attorney to handle the really bad delinquentcy cases. They can check credit ratings, bankruptcies and bank foreclosures.
KellyM3
(North Carolina)

Posts:1488


08/28/2010 5:15 PM  
Mary,

You're correct about foreclosure being the last step of a long process. But, you can't tangibly threaten foreclosure if haven't followed the legal trail that makes it a distinct threat in the property owner's mind. I recommend the board start that thankless journey that will leave no one feeling really good about it.

______________________________


We have 236 properties. 3 properties are awaiting dates on the courthouse steps. 1 property is pending our board's authorization for our attorney to proceed with foreclosure. Our by-laws explicitly note that the board shall foreclosure on delinquent properties. While our streamlined collections process has overall collection rates up 4% (form 91% to 95%) every month, those who don't pay are dangerously close to the auction block. A couple of years ago, there might be 15 properties delinquent and testing the HOA's mettle on collections.

In our case(s), the threat of foreclosure hasn't resulted in payments of delinquent dues. Not yet. We don't want to own these properties but we don't foreclosure at our own cash flow peril here in NC. Times are so economically bad that I'm wondering if a different era has dawned where HOAs will begin to take properties in order to save their organizations whereas better economic times allow threats to sufficiently prod a delinquent homeowner.

We stand to lose thousands in legal fees by "swallowing" them through the foreclosure auction.

MaryA1


Posts:0


08/29/2010 6:05 AM  
Kelly,

I think you will find that in these hard economic times that about the time the HOA is ready to foreclose the prop. owner's bank has already started the process. There may have been a time when that was not the case, but I doubt that isn't the case at this point in time.

Unless your CCRs or state law explicitly states when foreclosure can take place, IMO, you can threaten it at any time. There are still a lot of HOA members out there who don't realize their home can be foreclosed because of nonpayment of assessments.
KellyM3
(North Carolina)

Posts:1488


08/29/2010 6:50 AM  
Our board gets moving on non-payers beginning at 45 days past due. Therefore, we never stop the legal process in order to threaten a homeowner. In fact, there's no threats issued at all, only legal notices. It actually slows the collection process to stop matters and issue a warning. Our state law here in NC provides a multi-step process where dues payers get multiple warnings/threats prior to collecting delinquent dues.

Our state law makes the HOA jump through many legal hoops but also provides that delinquent dues payer will reimburse the HOA for all the legal fees incurred in getting their attention or finding them on the collection matter. It's not something we enjoy doing but we sliced a month off our pool season in 2010 over maintaining healthy cash flows.

Just follow the law and matters will move relatively quickly.
SusanW1
(Michigan)

Posts:5202


08/30/2010 4:55 AM  
Well, the HOA better move fast. Sounds like a litany of past due accounts on this home and you could lose out if you don't get to be first in line.

She is probably behind on taxes, too. If things are this dysfunctional, maybe social services should be called. How old is this person? Where is extended family?

PS: Just because the bylaws say the board MAY foreclose, does not mean it MUST. Why would the board want the home, anyway? Eventually, it will be sold, so this may be a waiting game on this one.

Stop feeding a lawyer, in the meantime. ($50 per month raise in assessments JUST for this one problem??)
KellyM3
(North Carolina)

Posts:1488


08/30/2010 5:36 AM  
An HOA should never wish to own private property but its negligent if it only threatens non-payers with no bite behind the bark. After all, someone is subsidizing the freeloaders, including driveway repairs that are very expensive when needed.

Just follow the law and its process.
KarenT
(Washington)

Posts:248


08/30/2010 8:11 AM  
Posted By KellyM3 on 08/27/2010 6:13 PM
Foreclose....that's how you end the traveling down a private road trespassing issue.




We gave her notice in July that we would start foreclosure within 45 days along with a letter to her lender indicating the HOA was going to foreclose. She flat out ignores everything, she has no respect for authority whatsoever and has many judgments against her already. We are in the process of turning this over to the HOA attorney to pursue. Part of the problem is no one will confront this person - she is extremely vile and has even left vile and threatening messages on the HOA attorney's voice mail. She even said she would take her own life and have her ashes placed in the yard of the HOA president. Nice huh!
SusanW1
(Michigan)

Posts:5202


08/30/2010 1:13 PM  
Again I say: with what you have described, something else is going on.

Call the Adult Social Services to investigate. She has threatened herself AND others.

That's reason enough for someone to come out.
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