Nuisance Violation Technicality

Hi everyone,

We have a legal threat from a homeowner regarding nuisance warning and fines that were sent for repeated late-night noise incidents.

We've already forwarded it to our lawyer but they usually take a few days to respond and I thought I'd ask around if anyone else has had this problem while we wait.

Basically, our fine schedule is warning/$75 2nd offense/$150 3rd offense/$300 4th offense. In this case we actually sent a couple warnings first. Now that they've moved into the fines, they are making the legal argument that each instance is independent of the other. The reasoning is that when you are cited for a nuisance violation, the form letter that the manager sends says that you have 14 days to correct the violation.

I guess the homeowner's thinking is that because the violation (a party) was "corrected" within the two week time period, that it was "closed out" and that they shouldn't be fined because they corrected it. They also contend that subsequent violations stand on their own, rather than being consider 2nd or 3rd violations - again, since the original violation was "corrected".

Seems like a real twisting of logic to me. Of course, by the time someone receives the letter you'd expect that the violation would have been "corrected" and that the party hasn't actually continued for two weeks, right?

Has anyone ever had this challenged before or have any thoughts on the validity?

From our Rules:

NOISE AND NUISANCE: No nuisance, noxious or offensive activity shall be allowed on the property, nor any practice that is the source of annoyance to residents or that interferes with the peaceful enjoyment or possession and proper use of the property by its residents. This includes the playing of musical instruments, stereos, video games and/or televisions at a volume which disturbs other residents or a neighboring unit.
QUIET HOURS: It is expected that all condominiums and outdoor areas will be especially quietduring “Quiet Hours” which are 10:00 PM – 9:00 AM.
FINES: Upon the first violation of any of these rules an initial warning will be sent. A $75.00 fine will be assessed to the owner for the 2nd violation, $150.00 for the third violation and $300.00 for the fourth and subsequent violations.

Michelle how is the violation letter written? Ours specifies if a violation of the same type occurs within a year then it is an automatic fine.

Michelle,

I would suggest rewording some of the notice. Perhaps the following:

Original: If the violation is not corrected.
Suggestion: If this violation continues
Suggestion: Failure to comply with this guideline can result in

Original: It is anticipated that you will correct the above violation by (date + 14 days).

Suggestion: It is anticipated that you will correct the above violation by [mm/dd/yyy] and that the infraction will not occur again. Future infractions of quiet hours will be considered a failure to comply with this warning.

Hope this helps,

Tim

do they have a point? yes, perhaps.

Is it valid? they might, just might, find a person or a judge who agrees. I think it unlikely.

were i actually your lawyer (and i am not anyone's lawyer), i would simply remind said judge that such logic would make almost every law in the US a mass of stupidity. Your Honor, I agree i drove drunk last week. But that was a different event than driving drunk this week. they are not related at all, and the person i killed last week was a separate incident from the one i killed this week.

they got a violation for disturbing the peace, essentially. are they really saying that unless they continued the same noise level/disturbance for two months, it's a new and totally different event, and not related? good. my dog bit your kid last month. and unless he continues to bite your kid, you can't increase my fines, because it's a new bite...

good luck with that.

Michelle,

I think the problem lies with giving the violator 14 days to correct a nuisance, especially a noise nuisance stemming from a party. It's unlikely the party will last for 14 days! The violation letter should not give a period to correct, because by the time the violator receives it the party is most likely over. Instead the violation notice should say the nuisance must be corrected immediately. Then it should go on to state that if this type nuisance occurs again it will be considered a 2nd offense and a fine of $$$ shall be levied. In AZ, the requirement is to inform the member that they have a right to dispute the violation and can contact the BOD at XXXXX. This must be done b/4 a fine can be levied.

Concerning the member's logic, I don't think it's that far off the wall. Unless you state that all violation notices for the same type violation will be treated as recurring violations, they should not be considered that way. For example, if a member receives a violation notice for parking on the street and removes the vehicle immediately, then that violation has been cured. Then 2 weeks later he again parks on the street. That is not the 2nd occurrance, instead it is again a first occurrance of the parking violation. The same applies to this noise violation. Each party was a separate violation of the noise restriction, unless the member had been informed that it would be handled differently.

One point to remember is that once a violation has been cured within the time specified that particular violation is over; there cannot be a 2nd, 3rd, etc occurrance.

This is just my opinion, of course. I am not an attorney nor do I have any legal training.

MichelleW,
Your latest post certainly gives a little different picure and it appoears it more neessary to go back to Basics.
First, the infractions, after the acute problem is solved, should be done by the Board informing the owner of the property of his responsiilities. Assuming this is covered in your documents, and the lease the renter signed has been filed at the association office. Not sure how your documents address this renter issue. but most likely it is all owner responsibility to keep his tenants under control. So clarify that first. Your members are not paying their fees for the association to manage rental property. That would be unequal and unfair. Your PM sounds like more of a problem than a help. The fact, if I read right that you allow your PM to service rental properties is something to avoid, but the Board should solve this. Frankly the Board is well within their rights to call the cops on anyone disturbing the peace, and they are mandated to preserve the peace of the association I would ask your property manager to put in writing her threat to sue you, and then fire her. for cause. You can't have any employee use the threat of a law suit to influence any Boards decision. She presents a threat to the association. The Board hired her, the Board can fire her. Look at her contract, it may even be you are locked into something the Board will need a lawyer to get you out of. Frankly, my opinion is you are all off the track and need some adjustments.

Hi MichelleW4,
Since this is the day before "Fire everyone Saturday," we may have to fire her also. She is a rental agent, she rents property that other people own for a living, that's all she is, she has no more rights than I do if I walk on the Property, once she leaves the unit, she is on common property and the BOARD controls common property. I am in a condo, we have rental units and rental agents, it benefits the association if a harmonious relationship is maintained with these agents. These agents know they do not run the train, if they don't it is the owners responsibility to insure they do. The owner of these properties does not absolve himself of his responsibilities that he agreed on when he purchased the property, there is nothing written that would allow this Rental Agent to have owner responsibility. If she has a problem she should inform her employee (owner) and he would be responsibility to work out differences with the Board. IMHO

MicheleW4 Boy am I glad I don't live in a condo. It sounds like there's more problems and restrictions with condo living. Even a grill on a patio? that seems very restrictive to me. I live in a HOA stand alone homes in Florida. If there is a neighbor with loud music from a party in the quiet time hours generally after 11 PM we just call the police and they shut them down after that time. If they contunue after a warning by the police and they return later they will be subject to arrest and taken to jail period. There's also a noise ordinance over certain decibels that's not allowed. However we do have two articles in our restrictions that deal with noise under article VI Nusances. No obnoxious or offensive activity shall be allowed upon the common areas, nor any use or practice which is the sourse of annoyance or nuisance to owners or guests which interferes with the peaseful possession and proper use of the common areas by owners. Also under restrictions affecting lots par 4. Says no affensive Activities. No illegal, obnoxious or offensive activity nor any nuisance whatever shall be permitted or carried on in any part of the property, nor shall anything be permitted therein which will become an annoyance to the neighborhood. This covers a great deal of things that could go with a neighbor. Loud constantly barking dogs,Loud chain saws, etc. The problem is with these lenghtly well written restrictions there's no penalty or fine given for continuing the activity. That's one thing that was left out. I suppose the board will have to come up with a warning letter and fine if it continues to happen. JerrellC

Thanks Jerrell,

For the record, this is my first condo and I will never buy one again! I find the quality of life to have been better in apartment buildings, can you believe that? I think the reason is that so many people here rent their condos out yet there is no central screening and many of the landlords live out of state so their tenants do whatever they want. This is also one reason why we have begun telling people not to just call the police, but also report problems through the HOA so that we can track which landlords are the worse and deal with them more aggressively.

We have a no-gas or charcoal grill policy on our patios because due to the size of the patio it's not physically possible to place them as far from the building structure as the local fire code requires, therefore they are illegal. Plus, someone started a small fire with one a few years ago.

Michelle

Mary,

I thought you said that putting the car back two weeks later was NOT a second offense. So I said that in our condo it would be considered a second offense. Maybe I misunderstood your post, sorry.

Technically, per our covenants, there is no expiration date for offenses like the grill on the patio. If they removed it for three months and then put it back, it would still be a second offense (not a "new" situation).

But unofficially, if someone goes for six months without any repeat offenses then we'd consider their slate cleared.

Thanks MichelleW4 Se my reply to glen below. I need lots of room. I don't like feeling closed in. We have parties occasionally and need the room. JerrellC in sunny Florida

Mary. I got educated too by your post. I thought if I got written up by our HOA for having a disabled, unlicensed vehicle on my lot and then moved it and brought another in in it's place,that would be a second offense.

Michelle,

I'll say it again; once the violation is cured it's over with. However, the policy can also state if a violation has been cured but is repeated w/i 30 days, or whatever, it will be considered a second offense and subject to a fine.

The problem with your violation letter is in giving the member 14 days to correct a noise violation. Why would anyone need 14 days to turn the volume down, or, as in this case, end the noisy party? I'm guessing the violation was cured b/4 the member even received the violation notice. I agree there are many violations that require time to cure, but most noise violations are not one of them. Actually by giving them 14 days to cure you're, in a sense, allowing them to have a party every day for 14 days. Providing a "grace period" means allowing the violation to continue for that stated period of time. IMO, for this type violation, the notice should state it must end "immediately upon receipt of this notice". If the situation involves a tenant, IMO, the notice doesn't have to give the property owner time to deal with a tenant since the party most likely was over b/4 the notice was received anyhow and a member in violation doesn't need any time to deal with it.

Of course, this is just my opinion on the topic. Whatever works for your assn is the course of action you should take. However, you do have a member disputing the fines because they feel each incidence was a new violation. Your policy only states 1st, 2nd and 3d violation and the applicable fine; it doesn't say the same violation being repeated, even if cured, means it will be considered a 2nd violation and carry the applicable fine.