Enforcement of violation commercial tow truck

Started by SueS2 • 13 replies • 2340 views

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SueS2 (Florida)
Posts: 4

Posted:

Our small Florida HOA is having an enforcement issue relative to our covenants. In this case the violator is a prior board member. He had a family member move in that works for a towing company and is on call and a little over a month ago requested permission to allow the tow truck to be parked in his driveway 3 nights/week. We replied in writing that the vehicle was not allowed due to section 9.8 of our community covenants. He pursued the matter requesting an exception and we indicated there was no latitude in the rules for that and that we had to enforce the rules as written. Now he wants the covenants changed to fit his situation and we informed him of the process required by our governing documents to change them and that even if a change were approved at the end of the process it would not be effective until the filing date and would be in violation before that time. He wasn't happy with the response and has been allowing the tow truck parked in his driveway several times in the last few days. He also made it a point to say that he had talked to several neighbors and that they were fine with it. We explained that the process must still be followed to execute an amendment.

9.8 No owner shall keep or park in driveway any trucks which are rated one (1) ton or larger. No heavy equipment of any kind will be allowed on said property other than those used for construction on said lots. No boats shall be parked or kept outside. All boats shall remain in the garage or boat corral except when in use.

It's rare that we have trouble getting compliance and we do not have an enforcement policy or fine structure in place for violations. Our governing docs allow for the board to implement rules.

1. Powers. The Board of Directors shall have power to:
A. Adopt and publish rules and regulations governing the use of the common areas and facilities including the personal conduct of the members and their guests theron; and to establish penalties for infractions of such rules and regulations.

We have been reading posts in this forum and it appears that towing vehicles are a huge liability and in this case it has been pointed out to us that this tow company is on call with the police department if that means anything relative to our situation.

We want to do our duty enforcing the rules while of course being prudent, not overstepping and handling the situation the most effective way possible. It looks like we would have to have a meeting of our board and publish guidelines for fines if we want to go that route and of course within the limitations of FL Statutes. Relative to 14 days notice and rights of hearing, does the fact that more than that period of time has passed where he was informed that the tow truck was not allowed count? It definitely appears that we must notify him of the right of hearing. We clearly have a willful violation after much correspondence over a month period of time. Any suggestions about possible solutions? Do most of you see implementing a fine structure as the best course of action? What's worked for your community?

GlenL (Ohio)
Posts: 5,491

Posted:

Yes IMHO you need to implement an enforcement policy ASAP. Do your CC&R's allow you to fine? One thing, be careful how how you word it. If you say that you send a courtesy notice first and the vehicle moves then it become a new violation the next time he parks it. However if you make it an automatic fine if the truck is parked there within a year of the original violation, he can't claim its a new violation.

I would also advise you when you have it drafted to run it by the HOA's attorney to make sure it complies not only with your CC&R's but also Florida law.

Studies show that 5 out of 4 people have problems with fractions

SueS2 (Florida)
Posts: 4

Posted:

Glen, yes our CC&R's do allow our board the power to establish penalties for infractions. Thanks for the tip on the wording. We are fairly new to HOATalk and taking some time to review past relevant posts. There is some great info here and we want to get this accomplished soon but want to be well informed. It would be great to find 1 or 2 sample policies to use as a model for the process. If anyone is willing to share their policy it would be appreciated. We're leaning more towards a fairly simplistic approach not using stacked fees as it seems that can cause more issues. We prefer not to fine of course but our hands are tied relative to compliance when we have no other avenues of enforcement.

JeffP6 (Florida)
Posts: 91

Posted:

Quote:

Posted By SueS2 on 11/06/2010 3:45 PM
Our small Florida HOA is having an enforcement issue relative to our covenants. In this case the violator is a prior board member. He had a family member move in that works for a towing company and is on call and a little over a month ago requested permission to allow the tow truck to be parked in his driveway 3 nights/week. We replied in writing that the vehicle was not allowed due to section 9.8 of our community covenants. He pursued the matter requesting an exception and we indicated there was no latitude in the rules for that and that we had to enforce the rules as written. Now he wants the covenants changed to fit his situation and we informed him of the process required by our governing documents to change them and that even if a change were approved at the end of the process it would not be effective until the filing date and would be in violation before that time. He wasn't happy with the response and has been allowing the tow truck parked in his driveway several times in the last few days. He also made it a point to say that he had talked to several neighbors and that they were fine with it. We explained that the process must still be followed to execute an amendment.

9.8 No owner shall keep or park in driveway any trucks which are rated one (1) ton or larger. No heavy equipment of any kind will be allowed on said property other than those used for construction on said lots. No boats shall be parked or kept outside. All boats shall remain in the garage or boat corral except when in use.

It's rare that we have trouble getting compliance and we do not have an enforcement policy or fine structure in place for violations. Our governing docs allow for the board to implement rules.

1. Powers. The Board of Directors shall have power to:
A. Adopt and publish rules and regulations governing the use of the common areas and facilities including the personal conduct of the members and their guests theron; and to establish penalties for infractions of such rules and regulations.

We have been reading posts in this forum and it appears that towing vehicles are a huge liability and in this case it has been pointed out to us that this tow company is on call with the police department if that means anything relative to our situation.

We want to do our duty enforcing the rules while of course being prudent, not overstepping and handling the situation the most effective way possible. It looks like we would have to have a meeting of our board and publish guidelines for fines if we want to go that route and of course within the limitations of FL Statutes. Relative to 14 days notice and rights of hearing, does the fact that more than that period of time has passed where he was informed that the tow truck was not allowed count? It definitely appears that we must notify him of the right of hearing. We clearly have a willful violation after much correspondence over a month period of time. Any suggestions about possible solutions? Do most of you see implementing a fine structure as the best course of action? What's worked for your community?

Be careful before you start to deal with fines - do you have a separate committee that is responsible for that as well as for the appeal?

Have you called your county code enforcment - it may be against the law in your county to keep a commercial vehicle in your sub regardless of your covenants or not.

1. - call code enforcement and if it is against the law let them handle it - cheaper for the HOA
2. - if not against the law - contact your HOA lawyer - send a demand letter and follow it up all the way to judgement - a judge will side with you as it is enforceable under your covenants.
3. - dont tow unless you have the power to do so.

SureshD
Posts: 268

Posted:

Yea, Jeff pretty much covered it.

In Florida, the HOA has no authority to remove (tow) anything from PRIVATE PROPERTY.

You can tow from COMMON AREA easily with the proper rule passage/posting and signage. We've done it and currently do. It's not a difficult thing to set-up.

As far as fining, you have not posted anything that gives you authority to impose fines for the misuse of private property.

Be prepared to be forced down the legal due process route.

SueS2 (Florida)
Posts: 4

Posted:

Jeff,Thanks for your great advice. We do need to implement enforcement policies even though it won't help in this situation. We only have 21 lots so we're quite small. Is there a significant difference in using a committee? It does seem like it may be advantageous for a committee of perhaps 3 submit recommendations before it goes to a board meeting. We do have a a committee for the appeal process.

It's clear now that in this case we do need to call code enforcement as you suggested and if that isn't an option go to step 2 with the assistance of our attorney. It looks like option 3 is not available to us after all without a change to our governing docs. It appears that the power of our board to enforce rules is limited to the common areas. I'm curious if some FL HOA docs allow board authority to impose fines for the misuse of private property.

I really appreciate everyone's help here!

SueS2 (Florida)
Posts: 4

Posted:

Quote:

Posted By SureshD on 11/13/2010 5:26 AM
Yea, Jeff pretty much covered it.

In Florida, the HOA has no authority to remove (tow) anything from PRIVATE PROPERTY.

You can tow from COMMON AREA easily with the proper rule passage/posting and signage. We've done it and currently do. It's not a difficult thing to set-up.

As far as fining, you have not posted anything that gives you authority to impose fines for the misuse of private property.

Be prepared to be forced down the legal due process route.

Thanks for the tip about being able to tow from common areas and pointing out that we don't have the option to fine in this case. The part we were overlooking was that this situation is on the owners property and not subject to common areas enforcement.

We read so many articles and recommendations about not towing that we were avoiding that option and starting to feel that enforcement is quite a difficult job. We've also had problems with vehicles parking on our community streets and on our 2 cul-de-sac areas which creates problems relative to emergency vehicles requirements. Under any case we need to firm up some enforcement guidelines for our "common areas".

We will follow Jeff's suggestion and you helped clarify some boundaries for us.

JeffP6 (Florida)
Posts: 91

Posted:

If you need to go the enforcement route by fining you need to make sure that you have read and understand Florida Statute 720. Regardless of whether your covenants say you can fine or not you can legally under 720. But you have to have a separate committee made up of 3 people that are NOT board members. The Board has no power over the fining process - this separate committee does.

Just make sure that you are versed in 720 before you go that route.

SureshD
Posts: 268

Posted:

Jeff,

Please post a link to where I can find this:

"Regardless of whether your covenants say you can fine or not you can legally under 720."

This is what I find in 720.305:

(2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee."...

JeffP6 (Florida)
Posts: 91

Posted:

That is per our HOA lawyer - he has case law to back it up.

SureshD
Posts: 268

Posted:

Well then, it must be true!

p.s.(I don't buy it)

DonnaS (Tennessee)
Posts: 5,671

Posted:

(2) """"""If the governing documents so provide, an association may suspend,""""" for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities """""and may levy reasonable fines,""""" not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.

(a) A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed.

Sorry Jeff, but your governing documents must allow for fining, not the Statutes. IF and I stress IF, you can fine per your docs, then you MUST follow the Statute 720: 305 2 and 3.

MaryA1 (Arizona)
Posts: 388

Posted:

Suresh,

I, too, am a little leary about this! It would be good to be able to read this case law.

SureshD
Posts: 268

Posted:

While at face value we're all (presumably) laymen here, it would seem counterintuative for the State to grant such powers to a corp. (HOA) not incorporated with same.

A link or other corroborating evidence would add credibility to such a claim.

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