Another satellite issue..again

Ken - like most of my answers I'll start with my standard statement check your documents.

Could they fine you? Sure, why not? They seem to ignore due process anyhow... I think you'd have grounds to refuse to pay such a fine though. Your documents should outline the procedure for rules violations but they almost always go along the lines of:
1. Notice of violation sent, including a demand to cure same
2. Notice of intent to assess for violation / enforcement, with right to a hearing
3. Assessment action

A reasonable amount of time, typically 7-10 days must be allowed between each step. They can't just skip to step three. I'm not familiar with North Carolina law, but there may even be a statutory process that must be followed for violations. Clearly that was not followed here.

Even if the association could claim that the dish had to be removed for safety reasons or because they considered it to be abandoned property that does not give them the right to immediately destroy it and it would be up to them to prove why it constituted an imminent hazard.

Personally I'd be raising a stink because it's a clear violation of due process. I would find the relevant documents and request a response from the board as to why the process was ignored, with a copy to the association attorney. I wouldn't necessarily expect to get a response but any competent attorney would see the situation for what it is and give the board a private admonishment to not behave that way in the future because it's a really good way to get sued.

Just for the record, they can require permission to install an antenna in a common area. The only places that they must permit installation is your exclusive use area. However it sounds like they do not even have a process in place for that which makes their actions all the more questionable. Sounds like they need a quick refresher on the do's and don'ts of running an association.

Good grief. Under the manager's interpretation the publication of the rulebook would be considered notice so they can always skip straight to the last step. It doesn't work that way. Your documents may even specify what constitutes notice. Normally it must be written and delivered via first class mail or personal delivery. In any event it must specify that YOU are in violation of the rules and give YOU the opportunity to respond, have a hearing, etc. Notice of violation is a term of art that has a well-defined meaning. A general admonishment or reminder to all residents published in a newsletter doesn't cut it. It may be notice of the rule but it is not notice of the violation.

I've always said that the board must uphold the association documents. But it cuts both ways - the board must be accountable and follow the documents itself. If it gets away with taking shortcuts what happens when it skips the process on another owner who decides to sue the association? Chances are the owner would win and everybody would wind up paying for it.

Are you aware of any of your neighbors who have received similar treatment over this or any other issues? Your board and management company need to be put on notice (pardon the pun) that the owners cannot tolerate the board ignoring the rules. Given the legal risks involved such actions are arguably a breach of fiduciary duty; a reasonable board should know that it must follow its own violation/assessment policy.

BarbaraD6,

I admit that I did not get board approval. That was stated from the beginning. I am trying to figure out what I was wrong about in MY statement. I am not disputing the fact that it was placed without permission, after you get permission they tell you where you can place it. My issue is with being fined without being notified or given an opprotunity to correct the issue as stated in the rules. Thank you for your comment.

Ken,

The issue here is not whether you should have been given notice, the issue is that you had no authority to place the satellite dish on a common area - regardless of what others in the community have done. Should the board have removed and destroyed the antenna, NO; however that is not the main issue. Per the FCC ruling, if you live in a single family home HOA you have a right to place a satellite dish anywhere ON YOUR PROPERTY and the HOA cannot deny you that right. However, in a condo HOA the FCC ruling does not permit you to install an antenna on a common area you can only install an antenna ". . .wholly within a balcony, deck, patio or ther area where you have exclusive use." The HOA does NOT have to give permission to mount a satellite dish on a common area whether it's a community of single family homes or a condo. Bottom line is that they cannot deny your request if the satellite dish is to be mounted on your property or exclusive use area. You state you have sent a letter of your intention to reinstall the satellite dish. Are you saying you are asking permission to reinstall or just informing the BOD this is what you will be doing -- there is a big difference? Do you live in a single family home or condo community?

Without reading your rules on violations, I cannot comment on the PM's comment or on what the proper procedure is w/o knowing exactly how the rule reads -- word for word. Following is the condo statute regarding fines, note that this statute applies if there is no specific procedure outlining fine in your covenants; therefore the statute would override your rule on fines. Also note that the HOA may impose a fine w/o first giving you the opportunity to be heard. Having said that, if your declaration does NOT give the BOD the authority to impose a fine then they cannot do so. The statute only applies to assn BODs that have this power.

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§ 47C‑3‑107.1. Procedures for fines and suspension of condominium privileges or services.

Unless a specific procedure for the imposition of fines or suspension of condominium privileges or services is provided for in the declaration, a hearing shall be held before the executive board or an adjudicatory panel appointed by the executive board to determine if any unit owner should be fined or if condominium privileges or services should be suspended pursuant to the powers granted to the association in G.S. 47C‑3‑102(11). Any adjudicatory panel appointed by the executive board shall be composed of members of the association who are not officers of the association or members of the executive board. The unit owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decision. If it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs. Such fines shall be assessments secured by liens under G.S. 47C‑3‑116. If it is decided that a suspension of condominium privileges or services should be imposed, the suspension may be continued without further hearing until the violation or delinquency is cured. A unit owner may appeal a decision of an adjudicatory panel to the full executive board by delivering written notice of appeal to the executive board within 15 days after the date of the decision. The executive board may affirm, vacate, or modify the prior decision of the adjudicatory body. (1985 (Reg. Sess., 1986), c. 877, s. 1; 1997‑456, s. 27; 2005‑422, s. 14.)

Ken,

Like I said, I cannot comment on your rule because I have not read it. That is why I posted the state statute. You should read it and determine if the BOD acted properly or not. Having said that I will say that IMO, regardless of what your rules say, I don't believe you should have been fined until you were give a notice of the violation and a time to cure.

As far as the satelitte dish goes, the HOA cannot require you to get prior approval to place the satellite dish on your private property IF that would mean a delay in the process. That is the FCC ruling which the HOA must abide by! Of course you placed the dish on a common area which you are not authorized to do, therefore the assn has a right to require it to be removed. It just appears that they went about it in the wrong way.

Ken,

Are you sure your gate is not a common element?

Ken,

Here is the website where the FCC ruling can be viewed and copied. Note that the HOA cannot require prior approval because that equates to a delay in the installation of your antenna. (Ref question: What types of restrictions are prohibited?") I would suggest you print out the ruling and give it to your BOD Pres or just give her the website and let her print it out. At any rate the BOD should know what they can and cannot do and also that they most likely are in violation of the FCC ruling by requiring prior approval. All the BOD needs to do is to inform the members that they can only mount an antenna on an area where they have exclusive use. Also when installing the antenna on your gate or fence make certain it does not hang over into a common area because that would be considered mounting it on a common area and the FCC ruling would not apply, meaning the BOD could deny the mounting.

http://www.fcc.gov/mb/facts/otard.html