Reimbursement to HOA for grass cutting

Our HOA is in GA. We have covenants which prohibit "restricted activities"
defined as anything which "detracts from the aesthetic character of the property, improvements". Another covenant entitled "Nuisances" states that "no noxious or offensive activity shall be permitted on any lot or amenity area, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood". We were having a problem with owners who don't cut their grass so we imposed a rule regarding this issue. The board decided that in order to enforce the above covenants as they pertained to overgrown yards, we would impose a new rule which was to contact the owner and ask that the grass be cut. If nothing was done, we would send a 10 day notice of compliance. If non compliance persisted, we would "take remedial action to correct the problem" and further advised that "these costs will be charged to the owner and added to the lot's yearly assessment".

We had to have 3 yards cut. One owner reimbursed the Association the $40. The other 2 have not and one said he will not as he felt it was the property manager's fault. We are now sending out 2011 dues notices and intended to tack on the grass cutting charges. Some board members are now thinking that since we don't have covenants which specifically address overgrown yards, we may be incorrect in our original thinking. It should be mentioned that the president of the HOA did the grass cutting and was paid the $40 per yard. Both owners have since had neatly trimmed yards & are no longer a problem. Any thoughts on what we should do? (Sorry this is so darn long but I wanted to state all the facts.) Thank you for any help you can offer.

Daniel,

I see a few problems with what you have done.

You said that the President of the Board was paid to cut the lawns.

Does your State law or governing documents prohibit a Board member from being paid to do work for the Association?

By having the President perform the work, it's highly probable that they would have only been entitled to receive reimbursement for expenses (i.e. a gallon of gas for the mower).

Did the Board receive bids for the lawn cutting?

Yes, someone within the community would probably have been cheaper then a landscape company. However, with the President doing the work there is a possibility of conflict of interest if bids were not gotten. Perhaps someone in the neighborhood would have done it cheaper. Failure to get bids for work and then paying a board member (above expenses) to do the work screams red flags of issues.

Did you consult with an attorney prior to trespassing on someones property?

Although it is possible for an Association to enter someones personal property to perform work, there are typically very stringent requirements that must be met prior to doing that work. Otherwise it is considered trespassing. I would strongly encourage you and your board to pay the fees to have that rule reviewed by your Associations attorney.

Tim

Clarifications:

1. Our CCR makes no provision for rule making and does not address lawn maintenance. It refers to non-permitted activities such as "Restricted Activity" and "Nuisances" in general terms and is silent on what should be done when violations occur. Therefore, the board took it upon itself to CREATE "RULES" governing lawn maintenance since that was not addressed with any specificity. We did post the overgrown yard rule on our web site & sent a copy to violators.(See pinecrestathens.org for our web site which includes our scant covenants.)

2. No bids were secured for lawn cutting and no permission was requested from the owner before cutting the overgrown yard. We sent 2 notices saying exactly what we would do if grass wasn't cut.

3. The only type of remedial action addressed by our covenants is when an owner doesn't pay "assessments" such as the yearly dues and "common expenses" to include maintenance of common areas and "such other costs and expenses as may be determined from time to time by the Board of Directors". Our thinking was that we are simply asking for a reimbursement and not a fine which we have absolutely no written authority to do.

4. GA law does not appear to prohibit a board member to be paid for services.

Bottom Line-We created a "Rule" to enforce our interpretation of what we thought a "nuisance" and a "detraction from the aesthetic character of the property" was. Overgrown yards are a nuisance and are an aesthetic detraction, in our humble opinion.

Any thoughts would be most appreciated. Many, many thanks.

Daniel,

The CC&R's might not provide for rule making, but it's possible that your articles of incorporation or bylaws might. Typically there is something there along those lines.

As long as the rule was properly created in accordance with your governing documents (typically for resolutions the board needs to adopt a resolution on how to adopt resolutions - as none usually exist) and published to the membership, the rule should be fine. Your reasons for the rule are sound.

IMO - we would have just fined the individual and if the grass still wasn't cut, would have notified the county as they can also force a homeowner to mow.

Susan -

I see no issue with a board member being paid for work done for the Association that is outside the norm of a board member. However, to remove the appearance of impropriety, I wouldn't do it. This is why I asked if bids were solicited - to lessen the appearance.

IMO - There have been several times that I've cut a tree limb or repaired a mailbox housing because it was easier, quicker and resolved the issue. However, I only asked that expenses be reimbursed because I didn't want an appearance of impropriety issue that might distract from an issue the board might see as more important.

Tim

Donna,

Not sure if you joking or not. For my organization it's in the bylaws under powers of the Board of Directors. Daniel made the statement that it wasn't mentioned in his CC&R's. I was just pointing to other areas he may or may not have checked.

I'm not trying to criticize the mowing getting done. I was responding to the original post where Danial said they were having concerns if they went about it the right way. I pointed out possible issues that might need to be addressed if one of his members wanted to challenge the issue.

Tim

Thanks to all who responded. I checked our bylaws and the only one I see that sort of applies to rule making is as follows:

"The business affairs of the Corporation shall be managed by the Board of Directors. In addition to the powers of authority expressly conferred upon it by these bylaws, the BOD may exercise all such powers of the corporation and do all such lawful acts and things as are not by law by any legal agreement among members by the Articles of Incorporation or by these bylaws directed or required to be exercised or done by the members."

Is this legalese saying that the BOD can enact rules in order to enforce covenants?

Thanks, again.

Daniel,

In reading your documents, Section 3.5 of your Bylaws authorizes paying the President, or any other board member, for the mowing of the lawn. Therefore, even though there might be a conflict of interest - it is certainly authorized based on my interpretation.

As Mary also indicated, I did not see anything that allowed the Board to create additional rules/guidelines. However, your articles of incorporation were not available on the web site, so it may be in there.

However, I do believe that the board could adopt resolutions to clarify anything within the existing governing documents. I think that this is what you tried to do. Based on your website, it doesn't appear to be a formal process. Therefore, I would suggest that the Board creates a policy resolution on how to adopt resolutions. I also believe that your State law would support such an action. Specifically (emphasis added):

§ 44-3-223. Compliance with provisions of instrument and with rules and regulations; penalties for noncompliance

Every lot owner and all those entitled to occupy a lot shall comply with all lawful provisions of the property owners' association instrument. In addition, any lot owner and all those entitled to occupy a lot shall comply with any reasonable rules or regulations adopted by the association pursuant to the instrument which have been provided to the lot owners and with the lawful provisions of the bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action. If and to the extent provided in the instrument, the association shall be empowered to impose and assess fines and suspend temporarily voting rights and the right of use of certain of the common areas and services paid for as a common expense in order to enforce such compliance; provided, however, that no such suspension shall deny any lot owner or occupants access to the lot owned or occupied.

Mind you, this passage doesn't provide authority to adopt rules. It does specify that lot owners must comply with any reasonable rule that is legally adopted as your governing documents allow. Since your governing documents do not appear to authorize the board to create new rules. I would suggest that the rules for individual lots be based on a clarification of any passage in your existing documents.

Example: Clarifying what might be considered a nuisance or annoyance to the neighborhood (like unkempt lawns). Remember to leave not define a nuisance or annoyance too much as it can limit you to only those definitions.

I could also find nothing specific authorizing your Association to fine an individual for infraction of the rules. However, the CC&R's, Item 26 Section A does provide for recovering damages as a result of non-compliance. I would interpret this to indicate that the Association could charge for the cost of the mowing but no more then the cost of the mowing.

QUESTION: Does your developer still own one or more lots within the Association?

If they do, Item 10.1 of the bylaws authorizes the Board to amend the bylaws without the need for membership vote. If this is a possibility, I would recommend your Association consider adding language allowing the board to adopt rules and establish penalties for infractions.

you may also wish to adopt a resolution on how to monitor compliance of the covenants.

Glen actually had a list he published identifying policies every HOA should have. Perhaps he can locate it and publish it again here.

Tim

Daniel,

Please don't take my opinions as fact. They are just my interpretation based on minor research, info in your postings, personal experience and (hopefully) some common sense. I am not an attorney and I do not work inthe legal profession. I do think you have some sections of the law and your governing documents that may have authorized your actions. I also believe that you still have some issues that can be troublesome for your Association (like how did you determine the cost would be $40 without bids).

Your CC&R's does authorize collection for monitory damages incurred. This indicates that the Association must have actual damages (like paying someone to mow). It does not, in my opinion, allow for general fining for non compliance. In fact, item 30 of your Covenants specifically identifes that enforcement for violations is to be by proceedings of law.

Your should run what you are proposing through your Associations attorney. They will have the knowledge of GA laws to properly advise you on things like trespassing and laying out any required procedures for due process the Association should formalize.

Things that I would recommend you have addressed by your Association Lawyer are:

1. What procedures does the Board have to follow to properly define what a nuisance or annoyance is (amendment or resolution, publication on the website or delivery of printed document to the membership, etc.)?

2. May the Board legally enter the private property to remedy a nuisance (i.e. mow the lawn) or would they be guilty of trespassing?

3. Since the CC&R's specify enforcement of violations are by proceedings of law or equity against person or persons violating the covenants, can the Association use other methods (fining) or must they only use legal action?

4. What due process procedures must the board follow when enforcing a covenant on a member who is in violation (# of notices, method of delivery, appeals, etc.)?

Tim

A HUGE THANK YOU to Tim and Mary for your time, expertise and help with our issue. You're the best. I recommended to the president of our HOA that we consult an HOA attorney in order to effect much needed changes in our governing documents.

Happy holidays!

I also wish to endorse Tim's warning about the HOA entering upon an owner's lot without their consent. My own primary HOA documents have only very narrow specific circumstances in which that can be done. They involve things like certified mailings, notices of hearings, review boards of at least 3 Board members and two other members of the community, and all the attendant red tape to surround such. A few decades ago one of our HOA's prior Presidents either didn't bother to look it up, or decided they were too much trouble for what she wanted to do, so she just entered the other woman's yard and removed the unauthorized flowers and shrubs.

She was charged with theft, vandalism and trespass and successfully sued. Her actions were found to be outside the protections afforded Officers of a Corporation in that she followed none of the procedures in our Covenants on file in the local courthouse and the only silver lining was that because she had not brought the matter up at a Board meeting before acting as the 'HOA President' no one sued the HOA. She lost money and found herself emerging from the ordeal with a restraining order forbidding her from any communication with the owner or approach to the owners property. Needless to say as other issues involving that owner arose the HOA was a little hampered in how to approach them until the President lost her office.