How newly formed board should deal with existing violations

Started by ValerieS2 • 8 replies • 1543 views

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ValerieS2 (Michigan)
Posts: 244

Posted:

We recently elected a board for our newly formed HOA (been inactive for 7 years).The developer is in the process of formally turning it over. It will not be finalized and official until the end of April when we sign paperwork accepting responsibilty for the association.

There are probably about a dozen shed violations in our 74 single family home community. At the election meeting, the developer reccommended allowing those sheds to remain but to enforce the rules going forward.

One of the new board members is vehemently opposed to this. He says it was the developers responsibility to enforce the rules and we should "make him" enforce it before we take it over. Myself and the other three board members are more of a mind to take the developers advice. I understand his point though, why should some be "rewarded" for breaking the rules...

How have others addressed existing violations?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Tough call. You are cleaning up a real mess. Plus "Grandfathering" is perceived as unfair to a lot of folks.

Take a look at the rule and see how much of a "violation" there is. If someone has built a shed that is two stories tall and painted pink, that's different from a guy who just built his a little wide.

The ruling may have to be updated and/or adjusted, and then enforced.

I hope that you went thru ALL your documents and made sure that they fit the "new" HOA.

It's easier to "loosen up" than "tighten up" and the developer has left you with a burden.

I will be watching this post for some ideas . . .

ValerieS2 (Michigan)
Posts: 244

Posted:

Does a developer's "architectural control" supercede the bylaws? Our bylaws state develpoer is solely in charge of enforcement of architectural violations, ie the sheds, so I wonder if he is remiss or within his rights to have allowed the sheds that are in violation of the bylaws.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Is this a voluntary HOA association or non-voluntary HOA?

Makes a big difference if you want to enforce anything.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ValerieS2 on 03/17/2011 1:51 PM
Does a developer's "architectural control" supercede the bylaws? Our bylaws state develpoer is solely in charge of enforcement of architectural violations, ie the sheds, so I wonder if he is remiss or within his rights to have allowed the sheds that are in violation of the bylaws.

They would not supercede the bylaws. However, if a member requested permission for a shed from the builder and received authorization the HOA could be on hook to pay damages if they are now telling the owner to remove them. Suggest you get full documentation from the builder on any shed authorizations first.

If you are going to allow those sheds to stay, your going to have issues in the future from anyone else who wants a shed since there are some already in the development. You might want to consider modifying the rules and require future sheds to comply when they are replaced.

Tim

SharonG4 (Mississippi)
Posts: 54

Posted:

We had the same issue. The developer gave a "waiver" to some homeowners to put in sheds that did not meet the requirements, other homeowners built sheds without approval at all BUT the developer and the property managar that he used did not keep any records. NONE. So we did not know who had gotten approval and who had not. Our lawyer recommended allowing the sheds to stay however, we posted on the website and mailed to the residents the standard that would be required going forward now that the subdivision was turned over. The grandfathered sheds would also not be allowed to remain if the home was sold or if the current homeowner made any changes (other than painting or general maintenance) We did send a letter to all of the owners of the grandfathered sheds that required them to paint the sheds to match the homes if they did not match already. We only had 1 homeowner balk at that and he relented when we told him the alternative was that we would have the lawyer look into whether he had proper approval for the shed in the first place---we asked him to provide written documentation of the approval---he painted the shed the next week. It's been a year now and we have not had any problems with homeowners putting up "unauthorized sheds" and we had 1 shed removed when the owner put the house on the market.

ValerieS2 (Michigan)
Posts: 244

Posted:

Thanks for the info. Steve, what do you mean by voluntary? Of course, we receive no compensation but I think you mean something else...

TimB4 (Tennessee)
Posts: 21,059

Posted:

Valerie,

There are voluntary Associations and mandatory Associations.

Mandatory associations have restrictions attached to the deed of the home that must be complied with. These restrictions transfer to every homeowner and, just by purchasing the home, the new owner is now part of the Association, must comply with the rules and pay annual assessments.

Voluntary associations are just that, voluntary. They "voluntarily" follow the rules all agree by but are not "required" to follow them and they may quit the Association whenever they desire.

Most new developments are mandatory, especially if there is any common area that must be maintained.

Tim

ValerieS2 (Michigan)
Posts: 244

Posted:

Thanks for that clarification Tim. we definitely fall into the mandatory category.

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