What evidence does the board have to provide when fining a member for a violation?

Started by ShirleyC14 • 8 replies • 125 views

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ShirleyC14 (California)
Posts: 3

Posted:

What evidence does the board have to provide when fining for a violation?

ArtB1 (Florida)
Posts: 98

Posted:

A photo is best evidence

TimB4 (Tennessee)
Posts: 21,073

Posted:

As others have said, I prefer photos. Perhaps marked up showing the area that is bad.

That said, realistically, the Board doesn't have to show any evidence (they should, but are not required to).

Photos lets everyone see what the complainant saw.

If challenged, proof would have to be provided to the court, so I think it's silly not to provide proof when telling the member that something is in violation.

We had an issue once where a fascia board along a roof line was not painted when the house was painted.

The Board told the owner, the owner told the painter, the painter said it had been painted.

This went around and around a couple of times until I took the time to walk to the home and take a picture.

Now the owner saw what we saw and had proof for the painter (who apparently never looked).

So, photos are the best proof.

BillD16 (Texas)
Posts: 982

Posted:

It’s not really evidence, but the violation should include a reference to whatever rule or covenant was broken.

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

ElleN (Idaho)
Posts: 1,354

Posted:

It depends.

If push came to shove and a dispute over an alleged violation went to court, the courts want to see a certain amount of "due process."

When the governing documents are not clear about what to do, and there is room for discretion, be reasonable and fair in exercising this discretion.

SheliaH (Indiana)
Posts: 6,973

Posted:

Depends on the violation and everyone's already given you a decent blueprint. Use photos (time and date stamped), a citation of what community rule and/or CCR was violated, and proof of previous violation notices.

You might also include things like design standards (e.g. approved height, color and materials for a fence) - and those should have been approved via a board resolution during an open board meeting, and then distributed to the homeowners with an effective date. A reminder of where requests should be directed (simply telling any random board member you want to build a fence isn't enough) will also do.

Take a look at your processes. If they aren't clear, you'll need to work on that. Pay attention to timelines - are they reasonable? You might need to look at that as well. When developing a rule enforcement policy, boards should approach it with the goal of preventing drama before it starts - but if it ensues anyway, you need something that will stand up in court.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

TerriS6 (California)
Posts: 3,287

Posted:

If SB1007 passes this year, in addition to changing assessment cap without member vote from 20% to 8%, this will be required: "This bill would require the association to make any physical evidence used to determine a violation of the governing documents has occurred available to the member at least 5 business days before the hearing or deadline for the member’s response, if the association seeks to impose a monetary penalty against a member for violation of the governing documents, as provided."

DeanJ
Posts: 1,792

Posted:

What is the nature of the violation? Photos work well for most violations, but if this is a personal conduct violation more than one witness from more than one property who is willing to provide a written statement works.

SheliaH (Indiana)
Posts: 6,973

Posted:

Dean has a good point. It's one thing to have time and date stamped photos if someone parked in the wrong spot or put up an unapproved fence, but if it's a dispute between neighbors, that can get tricky. Even the time and date stamp of the photo(s) can be manipulated (on most cell phones, there's an edit feature that allows you to change it and then you'd probably have to grab the phone itself and have an expert check the metadata).

Witnesses are very helpful, but they can also be manipulated or accidentally (or accidentally on purpose) switch around facts of the story. Written statements can be a good place to start, provided everyone knows they must sign and date the document and the information they provide might be used in a legal proceeding (that may get them to think twice about lies and damned lies)

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

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