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forcing renters to abide by the bylaws

Started by EbonyJ • 17 replies • 4617 views

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EbonyJ (Tennessee)
Posts: 62
Posted:
We have a renter that built a wire fence, when we can only build wood per our bylaws. They have started to move couches on the porch (our city codes made them remove).. Our management company has said that they send letters to the address and they are all returned. The homeowner has her address listed as the one in our community, and we can't find her to serve the paperwork. The management company is saying we can't do anything to the renter. We have even knocked on the door and they wont talk to anyone about it. Can we just send the renter a notice that we will remove the fence and all the other junk he has thrown on the common area...
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Sorry doesn't work that way. You have to hold the OWNER's feet to the fire. There are ways to find the owner with a bit of extra work. Which sounds like the MC doesn't want to do. Sending letters to the address is the correct procedure. I'd even recommend certified mail as proof letters to that address were sent/returned. The legal address of the property is still the HOA property they own.

If you want to find the owner, then a little investigative work will have to be done. They should be on the TAX records for the property. Keep in mind there may be up to 6 months before the Tax records will reflect the new owner. Give them a call and have the LOT number of the property available. They should be able to provide you with the name of the person. A simple look in the phone book or internet should provide you their phone number/address. Although that address may be used as a secondary contact. Keep sending the letters to BOTH addresses.

The HOA can remove the fence and bill the owner for the cost of removal. If that owner doesn't pay the bill, then the HOA can lien the owner for the expense. Unless your HOA has specific fines/rates written into their documentation defining what each violation is fined at, then this is the only good route for the HOA to go.

The owners/renter will of course threaten to sue. Let them. 9 times out of 10 they won't do it. It's just hot air. If they do decide to sue, then the HOA can counter-sue for the expenses. It's cheaper to counter-sue than create a lawsuit. Don't be intimidated just because the word "sue" is mentioned. If your HOA is acting within it's rights, then why should it be a concern someone screams "Lawsuit"?
Former HOA President
LarryB13 (Arizona)
Posts: 4,099
Posted:
If the home has a mortgage, make a demand upon the mortgage holder. Standard mortgage boilerplate states that any rents collected belong to the mortgage holder. Chances are pretty good that the mortgage holder is not aware that they are financing a rental home and they may read the riot act to the owner.

If the renter is the one violating the CC&R's I see no reason why he cannot be ordered to conform to the rules. The CC&R's do not get suspended for rental units, do they? Your CC&R's should have been recorded, so anyone buying or renting has notice of the restrictions and cannot claim ignorance.

If the renter does file a suit, he cannot lawfully refuse to disclose the whereabouts of the owner if he is asked for that information.

I used to be a process server. The rule in AZ is that a person can be served at his home by leaving the summons and complaint with "a person of suitable age and discretion" who lives in the same home. The owner has told the association that she lives in the home and has given no notice to the contrary. If TN rules permit service on someone who resides there, file suit against the owner and serve the renter.

Final thought: You wrote, "The management company is saying we can't do anything to the renter." If I want the lawn mowed, I would call a management company. If I want legal advice, I would call an attorney. Lawyers do not mow lawns so I do not know why management companies think they can give out legal advice. If you are unsure as to how to proceed, call an attorney.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Larry no disrespect but you have the wrong concept of the renter/owner/HOA relationship. The Renter is NOT held to the CC&R's by the HOA. A renter is NOT a member of the HOA in order to be held to the rules of the HOA. It is the OWNER who should have it in their rental agreement that the renter obeys the HOA's rules. The rental agreement can be cancelled between the OWNER and RENTER if they find the renter has been in violation. It is NOT up to the HOA. The HOA can NOT interfere with the contracts of an owner. That may include their relationship with their mortgage company as well.

The options for the HOA is to find and contact the owner for the renter's violations. It is the owner's property and the damage the renter does ruins their property value. It's in the owner's best interest to step in and correct their renter. Even if the owner doesn't like the HOA, they still have to make sure their property is maintained to the rules.

Renters do have rights. In our state it takes 2 10 WORKING day notices to evict a renter. A renter can fight this. That fight can last over a year in some rare cases. So even if the HOA notified the owner of the violations and the owner decides to kick the renter out...It can take another MONTH minimum before the renter may move. The HOA can NOT interfere or make the process move faster. Just keep that in mind when you get frustrated.

I owned rental property in my HOA. My tenant moved a baby emu into the back yard...That was one of many violations he caused. It took me 5 months to get him out...So this isn't a fast process but it's the legal one...
Former HOA President
EllieD (Vermont)
Posts: 446
Posted:
For those states that that have Statutes based on the UCIOA the following might be of interest - re: the right of the Association to enforce directly against Tenants.

COMMENT from the UCIOA.
10. Unruly and disruptive tenants have been a significant problem in association administration. Revised Section 3-102 gives rights to associations to enforce the declaration, bylaws, and rules and regulations not only against the unit owner but also the tenant. Associations may now levy fines against tenants and enforce the rights of the unit owner as landlord.

WORDING from the UCIOA
(c) If a tenant of a unit owner violates the declaration, bylaws, or rules of the association, in addition to exercising any of its powers against the unit owner, the association may:

(1) exercise directly against the tenant the powers described in subsection (a)(11);

(2) after giving notice to the tenant and the unit owner and an opportunity to be heard, levy reasonable fines against the tenant for the violation; and

(3) enforce any other rights against the tenant for the violation which the unit
owner as landlord could lawfully have exercised under the lease or which the association could lawfully have exercised directly against the unit owner, or both.

(d) The rights granted under referred to in subsection (c)(3) may be exercised only if the tenant or unit owner fails to cure the violation within 10 days after the association notifies the tenant and unit owner of that violation.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By MelissaP1 on 08/22/2011 9:29 AM
Larry no disrespect but you have the wrong concept of the renter/owner/HOA relationship. The Renter is NOT held to the CC&R's by the HOA. A renter is NOT a member of the HOA in order to be held to the rules of the HOA. It is the OWNER who should have it in their rental agreement that the renter obeys the HOA's rules. The rental agreement can be cancelled between the OWNER and RENTER if they find the renter has been in violation. It is NOT up to the HOA. The HOA can NOT interfere with the contracts of an owner. That may include their relationship with their mortgage company as well.

The options for the HOA is to find and contact the owner for the renter's violations. It is the owner's property and the damage the renter does ruins their property value. It's in the owner's best interest to step in and correct their renter. Even if the owner doesn't like the HOA, they still have to make sure their property is maintained to the rules.

Renters do have rights. In our state it takes 2 10 WORKING day notices to evict a renter. A renter can fight this. That fight can last over a year in some rare cases. So even if the HOA notified the owner of the violations and the owner decides to kick the renter out...It can take another MONTH minimum before the renter may move. The HOA can NOT interfere or make the process move faster. Just keep that in mind when you get frustrated.

I owned rental property in my HOA. My tenant moved a baby emu into the back yard...That was one of many violations he caused. It took me 5 months to get him out...So this isn't a fast process but it's the legal one...

From what I read in the original posting, no one seems to know who the occupant of the house is or what his relationship is to the recorded owner. Neither the owner nor the occupant have produced a lease or rental agreement and both parties refuse contact with the HOA. For all we know, the occupant could be buying on a rent-to-own contract. Calling the occupant a "renter" is just an assumption.

I am unaware of any statutes that prohibit an association from taking action against an unruly tenant. Perhaps you could post some links to those statutes. When a person rents property, he rents it subject to all the restrictions that the actual owner faces. According to you, a tenant could paint the house purple and fly Nazi flags from every corner of his roof and the HOA would be powerless to act if it cannot find the property owner.

When I wrote "I see no reason why he cannot be ordered to conform to the rules" I was contemplating injunctive relief in a court of law, not some half-assed notice of violations from the HOA. That's why I suggested that the HOA consult their attorney in trying to deal with this owner and occupant.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
Yes, technically a renter could paint the house purple and put up a rebel flag. The HOA isn't helpless in enforcing the rules. It's just NOT against the RENTER but the OWNER. The HOA if it is allowed to levy fines for violations can add that to the owner's bill.

The lack of knowledge of who owns the property by the HOA has no relevance on who's in the property. The relevance is in finding out who the owner is of the property. That is simply done by a phone call to the Tax Assessor' office with the Lot number of the property. Something that should be able to reference off the subdivision plat or even your own tax assessment paperwork. (If your lot 10 and they are 5 houses away, you can deduce they may be lot #5).

Like I stated before. I owned rental property in my HOA with a habitual violating renter. It was ME the owner who was responsible for my tenants actions. It was MY property he was ruining. If I am concerned about my property value, then as a owner I would be the first to rip a new one into a renter who painted my house purple. The HOA's duty is just to notify me what is happening.
Former HOA President
LarryB13 (Arizona)
Posts: 4,099
Posted:
Could you pleeeeeeze point me to whatever body of law you are relying on that prohibits an HOA from taking action against a non-owner occupant?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By LarryB13 on 08/23/2011 6:35 PM
Could you pleeeeeeze point me to whatever body of law you are relying on that prohibits an HOA from taking action against a non-owner occupant?

Larry,

As I understand it, this would typically be the contract known as The Declaration of Covenants, Conditions and Restrictions.

Typically CC&Rs specify that the members agree to comply with various rules, etc.. Usually, within this document or other governing documents, there is language that specifies the member is responsible for their family, guests and tenants to comply with those rules. There is typically no contract between the Association and a tenant or guest.

Does this prevent the Association from approaching the tenant and informing them of the violation? Of course not. However, any fines should be against the member and not their tenant or guest. Does it prevent the Association from towing an improperly parked vehicle? Providing that the Association had the legal right to do so, it probably would not.

My Association sends a letter to the tenant with a copy to the member. Our cover letter on the copy to the member specifies that, per the CC&Rs, they are responsible for the tenants violation.

BradP (Kansas)
Posts: 2,640
Posted:
Larry...Tim is correct, your CC&R's should speak to members abiding by the regulations and should go on to define a member which is typically a property owner. Since renters don't own the property they aren't members and therefore can be held accountable by the HOA. The HOA needs to find the owner, serve them with violation notices and fine as allowed in their documents. The owner will in turn force the renter to shape up so he doesn't get fined. At least that is the theory.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Thank you Brad and Tim for clearing up what I have been trying to say. Renters are NOT members of the HOA, thus are not subject to enforcement by the HOA. It is the OWNERs who are held responsible for making sure their renters obey the rules. Find the owner, punish the owner.
Former HOA President
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Thank you Brad and Tim for clearing up what I have been trying to say. Renters are NOT members of the HOA, thus are not subject to enforcement by the HOA. It is the OWNERs who are held responsible for making sure their renters obey the rules. Find the owner, punish the owner.
Former HOA President
RichardP13 (California)
Posts: 1,767
Posted:
I happen to be looking at a set of CCR's that devote three pages to the discipline and fining of tenant on a lease. These were drafted and voted in by the membership in 2010. It define suspending a tenant right to use common area components, fining them for failing to honor the provisions of the governing doc, power to evict, and assignment of rent.
EllieD (Vermont)
Posts: 446
Posted:
BradP,

True.

But readers should be aware that some States have enacted RECENT Statutes that allow the Association to enforce directly against the Tenant.

However, the C&Rs, Declaration, probably needs to be amended to take advantage of this “right”. as it is not written to automatically apply.

Reference my earlier post on this thread, where I posted wording from the UCIOA.
BradP (Kansas)
Posts: 2,640
Posted:
Quote:
Posted By EllieD on 08/24/2011 12:14 PM
BradP,

True.

But readers should be aware that some States have enacted RECENT Statutes that allow the Association to enforce directly against the Tenant.

However, the C&Rs, Declaration, probably needs to be amended to take advantage of this “right”. as it is not written to automatically apply.

Reference my earlier post on this thread, where I posted wording from the UCIOA.

Ellie:

you are right...i tried to use the all encompassing and easily escapable word "should" and perhaps should have used "typically" Some states are alot more progressive in this fight while others like mine are not.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By RichardP13 on 08/24/2011 12:11 PM
I happen to be looking at a set of CCR's that devote three pages to the discipline and fining of tenant on a lease. These were drafted and voted in by the membership in 2010. It define suspending a tenant right to use common area components, fining them for failing to honor the provisions of the governing doc, power to evict, and assignment of rent.

Richard,

This is a great example how the CC&Rs can be amended to address the enforcement of rules onto renters.

In looking at the Davis-Stiling.com site about renter violations it appears that this is allowed in CA. Here is a link to a menu page about renters from davis-stirling.com.

Out of curiosity, what language must be included within the rental contract that creates this agreement between the renter and the Association?

PetunkaM (Florida)
Posts: 1,009
Posted:
Our Association is required to approve all leases and rentals. A copy of a lease or rental contract becomes an official record of the association.

1. An owner must give the Board a copy of the lease or rental agreement.
2. By signing such an agreement the owner automatically delegates his right of use of the common area to his lessee.
3. The lease or rental agreement is subject to terms and conditions of the Declaration and Rules & Regulations
4. The lease must specify who is responsible for paying assessments!
5. If the tenant fails to comply with the terms he/she is in the breach of rental/lease agreement.

Here is Florida law:

Each member and the member’s tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and
(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.
RichardP13 (California)
Posts: 1,767
Posted:
Tim

It's one of the properties I manage. I am in the process of amending a couple of sections. I will get ahold of one of tghe approved leases and share it here.

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