Need advice please

Mari,

Typically, Associations don't budget huge amounts of money for litigation. However, you said that "They need to find the money because I feel it's their obligation......after all that what the HOA fees are for. "

Are you willing to pay a special assessment of $1,000 or more so the Association can fight the issue in court?

Are you willing to appear as a witness for the HOA in court?

Based on your posting, the individual breaking the covenants has already indicated that he will stall or is willing to take the issue to court. The County is willing to take him to court and bear the expense if your willing to be a witness. If you are unwilling to be a witness, then the county doesn't have a strong enough case to win.

You indicated that you are concerned of repercussions if you do appear as a witness.

It appears to me that if you want the practice to stop, you will need to appear as a witness for either the county or the HOA. The county is willing to pay for the litigation. The HOA will probably need to raise the funds (special assessments, delaying common area maintenance, increase in annual assessments, etc.) to pay for the litigation.

Only you can decide how much of an issue this is to you. Only you can decide if any repercussions are worth addressing the issue. If you believe that this issue isn't worth the perceived risk, then the issue will probably never be addressed.

Tim

You and your neighbors need to try one more time to push for action from the Board. They need to enforce the CCRs.

Insist on going thru all the stages again: letter from board, from attorney, then file an injunction against him.

Yes, it will cost $$, but the HOA really must do this.

No, I'm saying the Association would be limited to any enforcement actions allowed within your governing documents or State law.

The typical enforcement options are fines and/or suspension of voting rights. If the violator doesn't care about voting rights and/or ignores the fines the Association will then be required to follow-up with legal action. Legal action costs money. Even if the losing party is required to pay the winning parties legal fees, funds are needed to initially pay for any legal costs before a judgement is rendered.

My Association budgets $1,000 per year for legal costs. We recently asked for a simple opinion of our attorney and received a bill for $300 to pay for the research done to offer an opinion. We are still waiting for the actual opinion and final bill.

I offer that as an example on how quickly legal costs can escalate. If the Association doesn't have the money and/or the membership is unwilling to pay the legal costs to enforce a violation, then it's possible that the violation will continue to occur.

I suspect that your Association spent around $300-$500 for that letter to be sent from the attorney.


You are correct that this is one of the reason. However, the main reason is to maintain the common area and pay for services (trash removal, snow removal, etc.). Associations expect that enforcement can typically be done with a simple notice and the threat of legal action (a letter from the attorney). Therefore, they don't budget money for major legal costs and rely on special assessments to cover those costs. The membership benefits by this methodology by having lower assessments.

If someone decides to force the Association to take legal action to enforce a rule or regulation, then the Board must decide if the costs are worth it. Sometimes the membership, tired of the special assessments, will force the board to stop any legal action.

This is just one of the facts about Association life that isn't well known.


An individual making a complaint, be it to the zoning board, the police or the HOA, may be required to prove the complaint. Just as the police may respond and investigate a complaint about excessive noise, if the noise quits before they get there, no charges will be filed unless the witness can prove it. Additionally, due process laws (which also apply to Associations) would require an accused to face their accuser. The accuser being the individual making the initial complaint.


You indicated that the Association did write letters to him. You also indicated that the Association had the attorney write a letter to him. Per your posting, he is ignoring all of them.

A lien on the home is only a method of ensuring money owed is collected prior to the sale of the property. If the person doesn't sell the property the lien does nothing. Foreclosure for fines related to rule infractions might is not always a possibility, as that will depend on State foreclosure laws.


Certainly an option available to you.

Do you feel your Taxes are not at work in this case because the zoning office couldn't afford to put an investigator to gather the evidence you might already have?


Not being an attorney, I can not answer for sure. A court would have to assign negligence percentages to all parties involved. I suspect that the fact the Board did have the attorney contact the individual about the infraction that they would probably have an out.

Of course, using your example, an argument could be made that you having this knowledge but refusing to testify to stop the activity could place some of the negligence on you.

I do understand your frustration in this issue. I also understand your concern of possible repercussions if you testify. I hope you understand that there could be other repercussions if the membership had to pay special assessments for legal fees for the HOA to bring legal action.

Again, since the issue is near your property and you have the knowledge about the issue, you are the only one that can decide how best to address it.

Personally, based on your posts, I believe the best way to address the issue is through the zoning office you called.

Tim

Thanks everyone for taking the time to comment. I really appreciate it.

I also forgot to mention that in taking some videos, I have evidence that twice my neighbor was pulling out of her driveway and had to get out of her car and yall across the street to have one of the landscaper's employees move his vehicle so she could pull out.

Many a time I couldn't get out of my driveway either. I had to go the opposite way and go around the cul-de-sac and do a victory lap to get off my street.

A friend of mine was pulling out of my driveway and hit one of his employee's vehicles. She had to file a claim.

Kids play on this street all the time especially now that the weather is nice. I really hate to see a kid get run over or injured. I'd think the HOA would get this stopped.

This is the first HOA neighborhood I've ever lived in. To be honest I just always thought that a HOA enforced rules or made sure they were enforced. Who knew they don't allocate the funds for enforcing their rules and regulations. I think they need to for cases such as this. I'm all for higher dues if it means we are protected and can stop any riff raff. These are our homes and we want to try and keep our home values up.

I'm not familiar with special assessments, exactly how does that work. Does this require all neighbors pay a one-time extra fee? I'm all for that if that's what it takes.

I don't understand why this guy didn't move out to the country...why chose a HOA neighborhood?

Also I looked online to find his business license and he has his dad's RESIDENTIAL address as his business address. I know he told the zoning guy that this wasn't his business and he had one offsite. Ha. His dad lives in a HOA neighborhood also and I remember this guy telling me how his dad's HOA was on him also. Like father like son.

One reason why I and other neighbors hesitate to face this guy in court is because he does have so many employees hanging out at his house at any given time. His staff changes often as you can see new faces over there all the time.

My neighbor next to me says he has a wife and 2 kids and he hates to take a chance in putting them in harms way. I understand that completely. After all the landscaper ripped letters apart and told the zoning guy that this is America and he can do as he pleases. I'd hate to put myself in danger by trying to stop this maniac. That's why I was thinking the HOA could handle. That is why the zoning guy told me I could take this route.

One other questions. If one year the HOA Board has 5,000 in the legal budget and doesn't use it all, where does the remainder go. Is it usually rolled over to the next year?

Thanks again for the replies.

Emphasis added:


The best proof would be the videotape and photos the original poster said they had. Of course, in a court of law they would have to explain how the tape and photos were gotten - requiring the person who took them to testify.

I think this is why the Zoning commission said the same thing about the need for the original poster to go to court.

Tim

I talked to the HOA President today. She stated that she talked with zoning.

Zoning told her that they will take my neighbor to court with evidence and he will be charged 225.00 for first offense. If he pays that and it continues I gather up evidence again and he goes back to court and is charged 500.00. He pays that and next time he goes to court there is jail time.

My HOA president has told me they can't send him a letter and fine him. They can't fine anyone because they aren't 'set up' that way. They can send a threatening letter but they can't make someone abide by the rules. I surely don't get that. Can someone help me understand why a HOA can't write a letter to an offending residence and if they don't abide, they can't give them a fine or anything else?

She said they can provide a private detective to come out a couple of days but she was really unsure of how that worked because she's never done that in the past. She said the HOA has been very weak in the past and she's trying to change things.

She said something about a petition that 90 percent of the residents would need to sign in order to be able to start handing out fines. I'm not sure what exactly she's talking about.

Why then are we called a HOA? Why don't they just call it pool/clubhouse/street light dues? Why is it still considered an HOA

Anyone else here on a board that isn't able to set fines?

Anyway, I guess my only recourse is for me to supply my evidence and take this guy to court through zoning. I'm very disappointed and discouraged by our so-called HOA. I feel cheated when I have to pay dues.

What exactly is she talking about as far as a petition that needs 90% of the resident's signature? Do all HOAs need this?

Can someone help me understand why a HOA can't write a letter to an offending residence and if they don't abide, they can't give them a fine or anything else?

It will depend on your governing documents and State law. If they don't specifically allow fines for infractions, then the only option is to go to court for an injunction to stop the activity. Without access to your governing documents, I can not offer better advice.

She said they can provide a private detective to come out a couple of days but she was really unsure of how that worked because she's never done that in the past.

Additional expense and time needed to gather enough evidence to go to court. If you were willing to testify on how your evidence was gathered, this expense could be eliminated.

She said something about a petition that 90 percent of the residents would need to sign in order to be able to start handing out fines. I'm not sure what exactly she's talking about.

Sounds like your governing documents do not allow fining for infractions. Therefore, in order to start fining the document (probably the CC&Rs)need to be amended. I suspect that this is the reason of the mentioning of the 90%, as this must be the magic number of membership support required to amend.

Anyone else here on a board that isn't able to set fines?

Until our State (VA) laws were amended, my Association, based on the wording in our documents, was unable to assess fines. However, we are now able to.

What exactly is she talking about as far as a petition that needs 90% of the resident's signature? Do all HOAs need this?

Every HOA has different requirements on what is needed to amend the governing documents. Some of these requirements are set by State law and some are set by wording within the documents themselves. Typically, the more control a document has, the higher the number of membership approval is required to amend it.

I offered to go door to door to get signatures, but she said if anyone is renting, that I'd need the owners signatures and some are out of state so I said oh well.

The offer was a good idea. The typical process would be to call a special meeting of the membership to amend the document. Prior to calling the meeting, the proposed amendment would need to be ran through an attorney to check for any legal issues. The process to change governing documents can take months or years to accomplish.

Why have rules and regulations if they can't enforce them?

It's not that they can't be enforced. The procedure to enforce them in your Association, as I understand it from your posting, is to take the individual to court. Then if the individual fails to comply they would be in violation of a court order, which carries far, far stiffer penalties.

As previously discussed, legal action costs money that isn't usually budgeted for, so it can take time to fund any legal action.

What exactly does the management company do?

Typically, management companies perform the daily tasks of running the association. These include the collecting, tracking and depositing assessment payments, oversee contractors, paying bills, putting together disclosure packages, etc. The specifics of what they do would be contained in the contract between the Association and the company.

Could they go door to door or work at getting these signatures she talk about?

As I said, it's not a matter of getting physical signatures, it's the process of developing a proposed amendment, arranging a meeting of the membership, sending notices of the meeting, holding the meeting and vote on the proposed amendment, if passed, preparing the amendment for signatures, signing the amendment, publishing the amendment to the membership and filing the change with the county courthouse.

Of course, if enough members do not show up at the meeting for a quorum or the proposal was not approved by enough members, then all that work was done for nothing.

It sounds like the Board doesn't really do anything much

If your not actively involved with the Board it is easy to have that perception.

I gave her the suggestion that it would be nice to have a neighborhood facebook page. . . .She wasn't interested in that at all.

Did you also offer to set the page up and chair a committee to decide what information would be added to the page and who would physically add it?

As your president said, they all have full-time jobs. It's also possible that they don't have the additional time, energy or technical expertise to establish such a page.

They may be more open to the suggestion if others would commit to doing the work.

Why would someone volunteer for this? Are there kickback, rewards?


I suspect that you are speaking about volunteering for the Board. There are many reasons that people volunteer. Some just want to be involved in the community, some have a specific agenda and once the agenda is finished won't volunteer again, some didn't like the way it was being done before and felt they could do better.

Kickbacks - No. Rewards - only of the knowledge gained or the sense of personal accomplishment.

Typically the board members are legally not allowed to be paid for their work. Based on my experience, they spend 15-20 hrs a month doing the job and receive only complaints. Sometimes there are thank you's but those are usually few and far between.

I started doing the job because I discovered that the previous board wasn't following the law or governing documents as closely as I felt they should be (hence - thought I could do a better job then they were). After being elected, I've discovered other issues that need addressed and I now have a personal agenda to serve in each office and bring things into compliance with State law and the governing documents. Since I am already being warned by other members of the board to slow down before I burn myself out, I suspect that when my agenda is accomplished, I'll probably not run again.

The only reward I have really received is the knowledge I've gained which will allow me to be fully prepared to decide if an HOA is up to speed or will have problems down the road, when I retire and move out of the area. This type of knowledge can be priceless.

However, you asked a very good question. Why would someone volunteer for the job? Perhaps this could be a topic all it's own.

Hope this helps,

Tim