Wait or Foreclose

Started by LawrenceC1 • 69 replies • 7624 views

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LawrenceC1 (Georgia)
Posts: 480

Posted:

A homeowner in our community made an exterior modification without getting prior approval from our Architectural Review Committee, as is required by the CC&Rs. After the fact, the ARC deemed the modification to be not in conformance with community standards. The Association then worked through the notification and fining process, being careful to follow all the rules. Twenty-five dollar per day fines have now been running for three months. Including interest and lawyers fees to date, the total owed by this homeowner is now well over $3,000. The homeowner seems intransigent and unwilling to make the changes requested by the ARC.

Does anyone see any downside to letting the $25 per day fine continue to accumulate, rather than spending more money on lawyers and pursuing an order for judicial foreclosure?

The hope is that the homeowner will sell the house at some point and the Association will recover the fines at closing, without doing anything further. We have recorded a notice of covenant violation in the county land records, so any new owner will also be required to make the necessary changes before they get clear title.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The HOA can fix the violation and bill the homeowner. If they refuse to pay, then that amount is subject to a LIEN. Which means they can NOT sell their home until they pay that debt off.

Fines in many states (not all) can NOT be the basis for liens or foreclosures. Plus it has to be in your documentation to be allowed to levy fines. Usually if you can levy fines, there is a cap on the total amount. Read to find out what that is.

Waiting for a person to sell their home so the new owner makes the changes is WAAAAAY too late to enforce. You can't put the responsibility of the past owner onto the new one. You have to deal with the owner who is currently in the house. That debt they owe doesn't get paid by the new owners or bank once they leave.

Not sure what your paying the lawyers for. Seems kind of an endless loop on that one. It doesn't seem like your HOA is using that legal resource correctly. Mind you, the HOA can't lien, sue, or foreclose until it suffers some kind of financial lost. (Besides legal fees alone in some situations). A fine isn't a financial loss. It's a gain. That's money the HOA wouldn't have unless it was using it as a punishment. Not paying dues/late fees/special assessments are financial losses the HOA can show in court. The court system can ONLY make you WHOLE. It can't make you richer...

So find out if you can fine and lien. After that, talk to the lawyers and get advise if possible.

Former HOA President

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 5:41 PM
The HOA can fix the violation and bill the homeowner. If they refuse to pay, then that amount is subject to a LIEN. Which means they can NOT sell their home until they pay that debt off.

To get permission to exercise self-help, the Association needs a judgment, which entails lawyer's fees, which is what we would like to avoid if possible.

Quote:

Fines in many states (not all) can NOT be the basis for liens or foreclosures. Plus it has to be in your documentation to be allowed to levy fines. Usually if you can levy fines, there is a cap on the total amount. Read to find out what that is.

Yes, our CC&Rs give us the authority to levy fines, and these fines are treated just as assessments with regards to collection. As far as I can tell there is no upper limit to the fines, which is what leads us to the possibility of an endless wait.

Quote:

Waiting for a person to sell their home so the new owner makes the changes is WAAAAAY too late to enforce.

Substantiation for this position is exactly what I'm looking for. Is there a reason or reasons that this is so?

Quote:

You can't put the responsibility of the past owner onto the new one. You have to deal with the owner who is currently in the house.

At least in Georgia, filing a covenant violation in the land records prevents the new owner from getting clear title until the violation is addressed, either by the old owner or the new one.

Quote:

Not sure what your paying the lawyers for.

In the past we paid for letters notifying the homeowner of the violation and a process for appeal. Future costs would be to seek a judgment so that we could seek self-help, garnish wages, or foreclose the property.

Quote:

Mind you, the HOA can't lien, sue, or foreclose until it suffers some kind of financial lost.

I don't think that this true in our case. The lawyer has already offered to file suit for covenant violation, we have already assessed fines, and there is already an automatic statutory lien in place.

If you have something that I can use to support acting and not waiting I would be grateful for the help.

PetunkaM (Florida)
Posts: 1,009

Posted:

'homeowner in our community made an exterior modification without getting prior approval from our Architectural Review Committee, as is required by the CC&Rs. After the fact, the ARC deemed the modification to be not in conformance with community standards. (Lawrence)

The Board and the ARC had to notice the owner is modifying the exterior. Has anyone told him about the need for an approval, or did you all wait until the exterior work was finished and then decided you did not like it? This is what your post is saying. Right? How convenient.

You know, not every owner understand the covenants or what in the world the ‘community standards’ are. Now, the guy is about to loose his house. Hope you can sleep at night.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/10/2011 6:21 PM
The Board and the ARC had to notice the owner is modifying the exterior. Has anyone told him about the need for an approval, or did you all wait until the exterior work was finished and then decided you did not like it? This is what your post is saying. Right? How convenient.

You know, not every owner understand the covenants or what in the world the ‘community standards’ are. Now, the guy is about to loose his house. Hope you can sleep at night.

The homeowner in question has owned the property and lived in the neighborhood for 15 years, and is well aware of the CC&Rs.

The Chairman of the ARC tried to stop the unapproved installation as soon as he saw it going up. If the work had stopped right then, there would not have been a problem. However, the homeowner responded instead with accusations of harassment and trespassing, ordered him off the property, and finished the work anyway.

Two days after the attempt to stop construction, the homeowner sued the association (and lost in court). The Association incurred over $5,000 in attorney's costs defending itself against the suit.

This is a classic case of a homeowner who does not like the association and will fight the rules every step of the way. It is not easy being on the board of an HOA, but someone has to do it and someone has to make the tough decisions. And yes, I can sleep at night because I know that enforcement of the covenants will ultimately benefit everyone in the community.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My question is why you would think a new owner would be responsible for a former owner's mistake or even debt? Unless there is a lien on the property, there is a CLEAN title on the home. The new owner is a clean slate when they purchase in a HOA.

There seems to be alot of misconceptions and assumptions here. I would like to see the section that allows you to levy fines. If your paying a lawyer to write letters, why aren't you paying them for a lien? Some states don't even require a lawyer to file a lien.

Your HOA doesn't want to foreclose and most likely doesn't have the right to do so for this. A foreclosure in this situation is a complete and utter mistake... Not worth it. Still won't get you the money or the violation fixed.

The option still is to fix the violation, send the bill to the member, and if they don't pay...lien. You may also need to do research on the maximum amount of interest and fines that is allowed in your state to levy. This is a lawsuit waiting to happen. The court frowns very badly on what they consider "Loan shark" loans. Which is what the interest and excessive fines could fall into.

Former HOA President

JamesC (Maryland)
Posts: 282

Posted:

Posted By PetunkaM on 09/10/2011 6:21 PM
'homeowner in our community made an exterior modification without getting prior approval from our Architectural Review Committee, as is required by the CC&Rs. After the fact, the ARC deemed the modification to be not in conformance with community standards. (Lawrence)

The Board and the ARC had to notice the owner is modifying the exterior. Has anyone told him about the need for an approval, or did you all wait until the exterior work was finished and then decided you did not like it? This is what your post is saying. Right? How convenient.

You know, not every owner understand the covenants or what in the world the ‘community standards’ are. Now, the guy is about to loose his house. Hope you can sleep at night.

PetunkaM:

Reading most of your responses to posts on this forum you seem to center around being very critical toward the rules/regulations being enforced by HOA's.
Larry, explained quite clearly to your confrontational response and it is apparent they tried to do everything possible to resolve their issue with an obvious homeowner who thinks the rules do not apply to him.
Unfortunatley there are too many homeowners who think as you do, and would like to see HOA's weakened, and I too would have no problems sleeping at night taking the exact same actions Larry, has taken.

Jim

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 6:50 PM
My question is why you would think a new owner would be responsible for a former owner's mistake or even debt? Unless there is a lien on the property, there is a CLEAN title on the home. The new owner is a clean slate when they purchase in a HOA.

There are two articles that lay out the law here. I’M RESPONSIBLE FOR THE PREVIOUS OWNER’S CONSTRUCTION and Filing A ‘Notice Of Covenant Violation’ Lien.

Quote:

Posted By MelissaP1 on 09/10/2011 6:50 PM
The option still is to fix the violation, send the bill to the member, and if they don't pay...lien. You may also need to do research on the maximum amount of interest and fines that is allowed in your state to levy. This is a lawsuit waiting to happen. The court frowns very badly on what they consider "Loan shark" loans. Which is what the interest and excessive fines could fall into.

Fixing the violation requires us first to get a judgment, so that the sheriff can be there to enforce our right to trespass and make the change. The judgement will cost about $800 in court costs and attorney's fees, which we want to avoid since it's throwing good money after bad. We already have a lien for the $3000 in fines and previous attorney's fees. Adding more to this lien isn't going to get us much.

Thank you for the suggestion to research limits on fines allowed by law. If I can find something, that would be an excellent reason to move forward rather than just waiting while the fines pile up.

PetunkaM (Florida)
Posts: 1,009

Posted:

Quote:

Posted By JamesC on 09/10/2011 7:05 PM

Jim,

I am not critical about rules and regulations nor do I want the HOA to be weakened. That is not my intent or a goal. Not at all.

First, allow me to say that BOD members are ‘useful idiots’. And, I am one of them, am sorry to say.

Second, I am trying to be fair. There are BODs who are totally unfair or stupid and there are members who are impossible to deal with. And, as far as I am concerned, Lawrence has not explained anything clearly. He worries about how much longer he can charge $25 to the homeowner or get him out. Just read this:

‘Does anyone see any downside to letting the $25 per day fine continue to accumulate, rather than spending more money on lawyers and pursuing an order for judicial foreclosure? ‘

Now, is that not over the top? And this continues:

‘The hope is that the homeowner will sell the house at some point and the Association will recover the fines at closing, without doing anything further. …

So , is Mr. Lawrence and his board despotic?

PetunkaM (Florida)
Posts: 1,009

Posted:

'The homeowner in question has owned the property and lived in the neighborhood for 15 years, and is well aware of the CC&Rs. {Lawrence]

Lawrence,

I can assure you people can live in the Association for 100 years may be aware of the covenants but do not understand them. Can you really say you understand them?

BradP (Kansas)
Posts: 2,640

Posted:

Melissa...you just can't march onto someone's property and fix whatever you want without legal justification. Even if it is in your HOA docs you better have an officer there to keep the homeowner from kiling you as that is what would happen.

Petunka...do HOA's have to hold everyone's hand? Sure they may not have understood the covenants and the need to ask for approval but at this point they have been notified of the violation, been notified of the fine and have made no attempt with this HOA to come to a remedy to the problem. Compliance is a two way street and i am so sick of folks claiming ignorance and then diggin their heels in when it is their responsibility to read and understand what they buy and what they need to do.

To the question at hand, I don't think letter the $25 fine per day accumulate and just sitting are the right course of action. at some point a judge will probably rule the punishment doesn't fit the crime and will reduce it anyway. I would do one of two things after I go back to the homeowner and ask them to fix this violation...you may even offer to waive the fines if they fix it now as a show a of good faith...if they refuse I would sue for the right to fix the problem yourself and lien the amount against the house or I would foreclose on the home and move on. After all if the homeowner doesn't want to work with you it will just turn into a peeing match and those get messy anyway.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Here is the issue why I don't post laws. It's because of the translation factor of non-licensed/practicing lawyers. There is a reason a lawyer is licensed. It's NOT applying the law as much as the ability to translate it to apply to different situations. What you have posted in reference may not apply to your situation or even state. There's litigating circumstances probably not mentioned. Hence why they call it litigation...

I believe you may be translating these laws your getting from the internet source a bit off and trying to apply it to your situation. The law referenced a case where a person got a loan from the bank to build a house. That person submitted plans for that house according to the rules. They then changed the design of the house without approval. This situation not only effects the HOA, but also the contract between the owner/bank. It's NOT what the loan contract was for. It was to match and to be approved by the ACC. Which means when that property got turned back over to the bank, the bank would be responsible for correcting the issue. It's because their loan agreement fell through because of the terms of the loan were violated. My best guess the bank had foreclosed on the owner at some point.

See the difference in translation? Does this apply to your situation? I also don't see the need for a judgement to get onto their property and served by the sheriff. This isn't the process that I know of. A lien is a judgement. There is no trespassing if this is on common property and the HOA is responsible for the OUTSIDE appearance of a home. They are doing their duty. It's different if it's INSIDE the home. That is out of the HOA's scope.

A letter stating that this is a violation and if it is not repaired, the HOA will send a contractor to do the work and send them the bill is what is needed. The letter can suggest a contractor and maybe a quote or two if you want to be considerate and try to be a good neighbor about it. The HOA can't arbitrarily hire the most expensive contractor. It should be fair and the owner given an oportunity to correct it with their own resources. I would even offer to waive the fines if they would co-operate and get the correction done. It's not like that fine money is really collectible in the long run. A fine is just there to add pressure to make the correction, it's not to add money to the HOA's fund. Plus the owner can easily sue over it. Suing your HOA is suing yourself and your neighbors...Which you found out by the HOA's lawyer bill...

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 9:14 PM
I also don't see the need for a judgement to get onto their property and served by the sheriff. This isn't the process that I know of. A lien is a judgement. There is no trespassing if this is on common property and the HOA is responsible for the OUTSIDE appearance of a home. They are doing their duty. It's different if it's INSIDE the home. That is out of the HOA's scope.

A letter stating that this is a violation and if it is not repaired, the HOA will send a contractor to do the work and send them the bill is what is needed. The letter can suggest a contractor and maybe a quote or two if you want to be considerate and try to be a good neighbor about it. The HOA can't arbitrarily hire the most expensive contractor. It should be fair and the owner given an oportunity to correct it with their own resources. I would even offer to waive the fines if they would co-operate and get the correction done. It's not like that fine money is really collectible in the long run. A fine is just there to add pressure to make the correction, it's not to add money to the HOA's fund. Plus the owner can easily sue over it. Suing your HOA is suing yourself and your neighbors...Which you found out by the HOA's lawyer bill...

What do you suggest when the contractor shows up and the owner confronts them with a shotgun? People get killed trespassing on other's property, that is why they send the sheriff to kick them out of homes in foreclosure. The outside in this case is obviously the owner's responsibility. Even if your documents allow you to fix it and bill it the HOA and any contractor who attempts without police protection, which typically requires a court order, is risking their lives and taking unnecessary risks.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 9:14 PM
Here is the issue why I don't post laws. It's because of the translation factor of non-licensed/practicing lawyers. There is a reason a lawyer is licensed. It's NOT applying the law as much as the ability to translate it to apply to different situations. What you have posted in reference may not apply to your situation or even state. There's litigating circumstances probably not mentioned. Hence why they call it litigation...

I believe you may be translating these laws your getting from the internet source a bit off and trying to apply it to your situation. The law referenced a case where a person got a loan from the bank to build a house. That person submitted plans for that house according to the rules. They then changed the design of the house without approval. This situation not only effects the HOA, but also the contract between the owner/bank. It's NOT what the loan contract was for. It was to match and to be approved by the ACC. Which means when that property got turned back over to the bank, the bank would be responsible for correcting the issue. It's because their loan agreement fell through because of the terms of the loan were violated. My best guess the bank had foreclosed on the owner at some point.

See the difference in translation? Does this apply to your situation? I also don't see the need for a judgement to get onto their property and served by the sheriff. This isn't the process that I know of. A lien is a judgement. There is no trespassing if this is on common property and the HOA is responsible for the OUTSIDE appearance of a home. They are doing their duty. It's different if it's INSIDE the home. That is out of the HOA's scope.

A letter stating that this is a violation and if it is not repaired, the HOA will send a contractor to do the work and send them the bill is what is needed. The letter can suggest a contractor and maybe a quote or two if you want to be considerate and try to be a good neighbor about it. The HOA can't arbitrarily hire the most expensive contractor. It should be fair and the owner given an oportunity to correct it with their own resources. I would even offer to waive the fines if they would co-operate and get the correction done. It's not like that fine money is really collectible in the long run. A fine is just there to add pressure to make the correction, it's not to add money to the HOA's fund. Plus the owner can easily sue over it. Suing your HOA is suing yourself and your neighbors...Which you found out by the HOA's lawyer bill...

Melissa:

please read this from above... Filing A ‘Notice Of Covenant Violation’ Lien...it requires the covenant violation to be fixed prior to a sale of a property which can be accomplished by the exisiting owner or through an escrow account by the new buyer...so yes in this case and state you can make new buyers fix covenant violations

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Oh please...If the contractor shows up on site and the owner comes out and throws a fit, the police will show up. I'd rather have them come for "free" than pay them lot's of money to do the same thing. The police will show up and the HOA will let them know they are responsible for the outside appearances of homes. The owner is violation and they have the right to enter and change it. It's ALL in the HOA's documenation. The contract the owner signed too and agreed for the HOA to enter their property to address issues...If the owner continues to be aggressive, the police will take them away in a nice police car...

It's all in the documentation. It's a signed contract there is an understanding the HOA has a right to correct violations. The owner will threaten lawsuit after lawsuit over the issue to be sure. However, the HOA has a legal stand and should tell the owner to see them in court. It's more expensive for the owner to file a lawsuit than for the HOA. Plus the HOA can countersue for the amount the owner owes them. All this trouble probably will just make them want to sell and move out. Getting your wishes after all...

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 9:38 PM
Oh please...If the contractor shows up on site and the owner comes out and throws a fit, the police will show up. I'd rather have them come for "free" than pay them lot's of money to do the same thing. The police will show up and the HOA will let them know they are responsible for the outside appearances of homes. The owner is violation and they have the right to enter and change it. It's ALL in the HOA's documenation. The contract the owner signed too and agreed for the HOA to enter their property to address issues...If the owner continues to be aggressive, the police will take them away in a nice police car...

It's all in the documentation. It's a signed contract there is an understanding the HOA has a right to correct violations. The owner will threaten lawsuit after lawsuit over the issue to be sure. However, the HOA has a legal stand and should tell the owner to see them in court. It's more expensive for the owner to file a lawsuit than for the HOA. Plus the HOA can countersue for the amount the owner owes them. All this trouble probably will just make them want to sell and move out. Getting your wishes after all...

good luck with that...by the time the police get there it would probably be too late anyway other than to arrest someone for homicide...if homeowners don't understand their covenants how would the police? How do they know the homeowner didn't follow the rules, how do they know it is in violation? They won't sit there and read the documents and they won't take the word of the contractor or a board member. Without a court order and with confrontation they would more than likely make the contractor leave. Police understand court orders not CC&R's.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/10/2011 8:23 PM
‘Does anyone see any downside to letting the $25 per day fine continue to accumulate, rather than spending more money on lawyers and pursuing an order for judicial foreclosure? ‘

Now, is that not over the top? And this continues:

‘The hope is that the homeowner will sell the house at some point and the Association will recover the fines at closing, without doing anything further. …

So , is Mr. Lawrence and his board despotic?

We have a covenant violation. Our obligation of duty requires that we take some action. We have notified the homeowner, provided an opportunity to challenge the finding, levied fines, and put a lien in place. The homeowner shows no signs of fixing the problem voluntarily.

Now we have two choices:

1) Let the fines continue to pile up at $25 per day and wait for the house to sell.

2) Take the next step in the legal process and seek a court judgment, which could cost us $1,500 or more. A judgment would allow garnishing wages, attaching bank accounts, and as a last resort, foreclosure.

Fixing the problem ourselves is not really an option, since the fix will cost between $8,000 and $10,000 and our association does not have that kind of money to spend, especially considering the very small chance that we will get it back from the owner.

It would be good to have solid justification for picking one of the two options.

There is no despotism here. Just a difficult situation with no good options and a board that is sorry that they have to deal with this mess.

PetunkaM (Florida)
Posts: 1,009

Posted:

Two days after the attempt to stop construction, the homeowner sued the association (and lost in court). The Association incurred over $5,000 in attorney's costs defending itself against the suit. (Lawrence)

Lawrence,

If the owner lost in court did not the judge rule to stop the construction? As to other legal options I have no idea. How about planting a magnolia tree so the modification is not all that noticeable?

Seriously, is it really an eye sore or is it a matter of principle or both? Never mind, it is none of my concern but it would be nice you guys could find a mutually agreeable solution to solve this problem. Wish you the best of luck.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 5:15 AM
If the owner lost in court did not the judge rule to stop the construction?

The lawsuit was for harassment, which was baseless and dismissed by the court in a directed judgment. However the court did not rule on the underlying covenant violation.

Quote:

How about planting a magnolia tree so the modification is not all that noticeable?

I have deliberately left out details of the covenant violation to deter searches from finding this thread. However, the problem cannot be hidden with a magnolia tree.

Quote:

... it would be nice you guys could find a mutually agreeable solution to solve this problem.

Yes, it would be great if everyone were reasonable and followed the rules. At each step of the way we have given this homeowner the option to comply with the covenants and end all this. Instead the issue continues to get bigger. This is one of the reasons that we are hesitating to seek a judgment and ratchet up the issue further.

Melissa has pointed out that we may face a time limit, or a maximum amount of fines that can be assessed. If we have to go to court to protect our interests we will do that, but are looking for ways to avoid doing this.

JamesC (Maryland)
Posts: 282

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 5:15 AM
Two days after the attempt to stop construction, the homeowner sued the association (and lost in court). The Association incurred over $5,000 in attorney's costs defending itself against the suit. (Lawrence)

Lawrence,

Seriously, is it really an eye sore or is it a matter of principle or both? Never mind, it is none of my concern but it would be nice you guys could find a mutually agreeable solution to solve this problem. Wish you the best of luck.

PetunkaM:::: With all due respect. What would be your suggestion for a mutually agreeable solution?

The board has a duty to uniformly enforce the governing documents against the owners and other residents of the property. "A BOARD DOES NOT HAVE THE AUTHORITY TO WAIVE OR EXCUSE COMPLIANCE WITH THE REQUIREMENTS OF THE COVENANTS"
It is up to the board to reasonably interpret its governing documents, and to adopt rules and regulations to supplement, explain and administer the enforcement of the basic rules of the Association. In general, the board should first try informal approches to obtain compliance, and then increase the severity of the consequences to an owner who continues to violate the rules. The purpose of all enforcement activity is not to punish the violator but only to encourage and obtain full and permanent compliance. When there is a flagrant violation, the board may have no choice except to take the violator to court and seek a court order requiring compliance.

We do not allow permanent awnings over our decks. A homeowner may have one made of cloth (certain color) which must be removed during off seasons. One of our homeowners requested a permanent awning which was denied. It was installed, and the Association ended up taking it to court. The Association won, and the homeowner was ordered to have it removed by the court. They filed an appeal, and lost again. All that money spent, plus they ended up paying the Associations legal fees.
They removed the awning, sold their home and moved. All for what????

Jim

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 5:15 AM

Seriously, is it really an eye sore or is it a matter of principle or both? Never mind, it is none of my concern but it would be nice you guys could find a mutually agreeable solution to solve this problem. Wish you the best of luck.

Really? Since the homeowner has dug in their heels they should just give up and not take away his home? Why not just send out a letter to all homeowners telling them the HOA won't really do anything to enforce covenants anymore.

Yeah a mutually agreeable solution would be great i am sure for them, however, that requires two parties and from all indications the party that owns the home has zero interest in talking. He made his bed now he can lay in it.

PetunkaM (Florida)
Posts: 1,009

Posted:

Lawrence,

It is difficult to answer your questions, without studying your docs and GA laws. In Florida imposing fines and collecting money and enforcing covenants is quite tricky. Fines cannot exceed $1K in aggregate UNLESS the governing docs allow it. Also, Florida law requires a 14 day notice and a hearing committee. I quote: ‘
__
A fine or suspension may not be imposed without at least 14 days’ notice 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. If the association imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.’
__

Please note, that until 2008 Florida did NOT allow to place a lien on the property for non-payment of fines. This is an older article by J. Adams, attorney, I have in my file.. It is an interesting read.

‘Regardless of whether the association tries to collect a fine through a lien process (if the bill is signed into law by the Governor) or through a small claims action, a court will closely scrutinize the association's actions, as fines are penal in nature. If the board has not closely followed the proper notice and hearing procedures in the statute, the court may determine that the association did not properly levy the fine, or that the provision the association is seeking to enforce was not violated.
Further, even if the association is successful collecting a fine, it does not guarantee that the violation will be corrected. For example, if the association properly levies a fine against an owner who is violating the parking restrictions, the small claims action could collect the fine, but will not be sufficient to obtain an injunction to require the owner to abide by the parking restrictions. Therefore, if the association is seeking to correct the violation (in addition to collecting the fine), the association will need to file a petition for mediation, or other legal action, in order to obtain compliance.’ J Adams, attorney

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 7:23 AM
In Florida imposing fines and collecting money and enforcing covenants is quite tricky. Fines cannot exceed $1K in aggregate UNLESS the governing docs allow it.

We have closely followed the rules in Georgia for levying fines. This is part of the reason that we have incurred legal fees. As far as I can tell, there is no law in Georgia that limits the aggregate fines as there is in Florida.

Quote:

...if the association is seeking to correct the violation (in addition to collecting the fine), the association will need to file a petition for mediation, or other legal action, in order to obtain compliance.

This would seem to indicate that waiting for the fines to accumulate is not a good option, and we will need to take further legal action.

PetunkaM (Florida)
Posts: 1,009

Posted:

Quote:

Posted By LawrenceC1 on 09/11/2011 7:45 AM

Quote:

This would seem to indicate that waiting for the fines to accumulate is not a good option, and we will need to take further legal action.

Melissa has pointed out that we may face a time limit, or a maximum amount of fines that can be assessed. [Lawrene]

Lawrence, sorry if I misunderstood. I thought you were not sure what the max is and this is why I quoted the Florida law for you to compare with GA law. Our covenants are rather ambiguous when it comes to Architectural control and do not address max for fines therefore we would be limited to $1K.

Yes, one has to realize that imposing fines, recording liens, foreclosures and covenant-enforcement are all different issues and require a different set of procedures.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am just hoping you realize that foreclosure isn't an option in this situation. It's far from it. If the owner isn't paying their dues, then foreclosure comes into the picture. If it's for violations, it does not. Plus the HOA doesn't want to foreclose as it is NOT a money making proposition and does the work of the bank. It's a stop gap/stop the bleeding action NOT a punishment....

There is a the real world approach to this issue and the fantastical one that happens in our heads. I am more of the real world type of person. More research needs to be done here on the facts. What are the limitations and time limits on fines? Does the CC&R's allow fines per state laws/limitations? Still haven't seen the actual statements from the CC&R's in regards to fines. Plus not sure if you can even charge interest on fines. You can charge a percentage of interest on UNPAID dues and maybe special assessments, but fines don't usually get that applied to them.

Not sure what the violation is exactly. Is it paint or a structual item? Is this a new house construction or modification to an existing structure? The article posted in regards to the new owner making corrections is on NEW construction and not existing structure. Which may be a different issue.

The HOA not having the money to do the actual violation correction is indeed an issue. One that needs to find a solution. The members could vote to have a special assessment to raise the money to fix the issue. Which of course this owner would be subject to paying as well. Which if the special assessment passed, and they didn't pay could then lead to other legal avenues. The HOA could possibly get a loan to fix the violation. Unfornately, the HOA can't get an estimate of the costs and then sue the owner for that amount. There has to be actual money (damages) paid out in order to get the judgement.

This is an issue that needs to be addressed with ALL the owners to see how they want to proceed. Is this such a violation that would effect their home values or is it one that could be acceptable it's just not in the rule book? The rules of the HOA is made up by the homeonwers to live by. They aren't static. See if this is such a majority eye sore that the owners agree to action to be taken and willing to pay for it...

Former HOA President

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 9:29 AM
What are the limitations and time limits on fines? Does the CC&R's allow fines per state laws/limitations? Still haven't seen the actual statements from the CC&R's in regards to fines. Plus not sure if you can even charge interest on fines.

Our restrictive coveneants say in part:

Each Owner and Occupant shall comply strictly with the Bylaws, the rules and regulations, the use restrictions, as they may be lawfully amended or modified from time to time, and with the covenants, conditions, and restrictions set forth in this Declaration and in the deed to such Owner's Lot, if any. The Board of Directors may impose fines or other sanctions, which shall be collected as provided herein for the collection of assessments. Failure to comply with this Declaration, the Bylaws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief, or both, maintainable by the Board of Directors, on behalf of the Association, or, in a proper case, by an aggrieved Owner. Failure by the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. The Board shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions, or design guidelines and to assess the cost of recording and removing such notice against the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing.

also:

If any assessment or charge, or any part or installment thereof, is not paid in full within ten (10) days of the due date, or such later date as may be provided by the Board of Directors:

(a) a late charge equal to the greater of Ten Dollars ($10.00) or ten percent (10%) of the amount not paid, or such higher amounts as may be authorized by the Act, may be imposed without further notice or warning to the delinquent Owner;

(b) interest at the rate of ten percent (10%) per annum, or such higher rate as
may be authorized by the Act, shall accrue from the due date;

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 9:29 AM
The members could vote to have a special assessment to raise the money to fix the issue.

I'm trying to get my head around making a special assessment and fixing the problem ourselves.

It's hard enough getting a special assessment for real community improvements. I can't even imagine getting people already pressed for money to pay $100 to fix someone else's covenant violation.

And as Brad pointed out earlier, we would have to go to court to get an order allowing us to make the repair. A board resolution alone is not enough to trump the laws concerning private property and trespass. We would need a judge to give us license to proceed.

If we're going to court anyway, why not just get a judgment allowing foreclosure and be done with it? The "Notice Of Covenant Violation" lien that we have already filed means whoever ends up owning the property will have to make the changes at their expense. We may not collect any of the fines at foreclosure, but we will get the problem fixed and get rid of the belligerent owner, which sounds like a good result to me.

PetunkaM (Florida)
Posts: 1,009

Posted:

Lawrence,

From what you posted.. I still do not see you can charge $25/day for a covenant violation without any limit. All I see is that you can file a notice of violation with the Dept. of Land (or such entity) and charge the owner for recording fees, etc. Also , you can sue for damages or injunctive relief. What are the damages?

You can bring injunctive relief, against the owner only if he/she willfully fails to comply with the governing docs , such as 'design guidelines’ in this instance. But you may have to file a claim with the Dept of Land first. (Not sure, but I read it this way). You need to prove the association is harmed in some way. Your attorney is going to make a lot of money.

Unless I am misreading something, the rest is not relevant because it addresses late payments.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 11:02 AM
I still do not see you can charge $25/day for a covenant violation without any limit.

The quoted section from our covenants says, "The Board of Directors may impose fines..." That is the authorization to charge $25 per day. The $25 limit has been established by the Georgia courts, as described in the article Understanding Fines.

Quote:

Unless I am misreading something, the rest is not relevant because it addresses late payments

The quoted section also says that fines "shall be collected as provided herein for the collection of assessments". That means that any of the provisions for late fees, interest, or anything else applies to fines exactly as it applies to assessments.

PetunkaM (Florida)
Posts: 1,009

Posted:

If we're going to court anyway, why not just get a judgment allowing foreclosure and be done with it?[Lawrence]

Lawrence,

Foreclosure: I think you need to discuss your options with an attorney. What makes you think you have the right to foreclose? And, even if you could, it could take years, at least in Florida there is a huge backlog. Don't know about Georgia.

FINES: Also, the article clearly states that such fines must be included in your Governing Documents. That is true in Florida also.

'There are several important considerations for the Board regarding the handling of fines.
First, it is imperative to follow the procedural requirements in the governing documents
(usually contained in the bylaws). These provisions will usually dictate the exact language
contained in the notice…including the number of days to correct the violation without a fine and
the homeowner’s right of appeal. Since fines are such a strong remedy, a court will want to see
notices that include all of the mandated provisions.’

I would think your only option is ‘injunctive relief’ if this is an architectural compliance issue. Here is one example where the association won. You can search others.

http://hoalaw.tinnellylaw.com/2011/04/tlg-secures-injunctive-relief-1.html

I also think you are misreading the covenants, but do not want to argue about it.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 11:49 AM
I also think you are misreading the covenants, but do not want to argue about it.

The letter that notified the homeowner of our intent to assess fines, and that established the timetable for the right to appeal, was written by the Association attorney, so I'm fairly sure that the covenants give us the ability to assess fines.

Quote:

I think you need to discuss your options with an attorney. What makes you think you have the right to foreclose? And, even if you could, it could take years, at least in Florida there is a huge backlog. Don't know about Georgia.

We have been working with an attorney. We do have the right to foreclose, and our lawyer has encouraged us to seek a court judgement that includes this option.

My point in this thread is to poll the experienced readers of this forum, to hear opinions about whether we should follow through and foreclose, or simply wait while fines pile up.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I agree with you Petunka on the misreading of the convenants. There is a misread and understanding. Unfornately, the issue is the same with most HOA documenation. It states the HOA can place fines for violations. What it fails to state is the limits and amounts. It's like telling someone they can drive your car but there's no gas in it.

The statements also don't allow for interest to be charged on the fines. It is ONLY for the dues and late charges. Which kind of go together. Not paying the dues on time leads to late charges which then are subject to interest. It is NOT fines that are subject to interest.

Why are you stuck on foreclosing? This is a BAD idea. I know, I've done it. It can costs thousands of dollars, the bank gets paid first and always, and your HOA doesn't have the right to foreclose on a property for unpaid fines. Heaven forbid if the HOA got the property. That's even worse. The HOA would not only have to pay all their legal costs associated with foreclosure, they'd have to pay the bid price which IS the cost of the foreclosure Plus $1, and ASSUME the mortgage on the property. It's not like you get the house for the foreclosure price. You get the house for the foreclosure price PLUS the amount still owed on the home. The HOA then has to pay the dues on the property and maintain it. Some states allow the owner to come back and claim the house back up to a YEAR plus improvements AFTER the foreclosure. So the HOA would have to hold onto the property for a minimum of a year. This is a GOOD scenerio at that. Unless you can find another buyer for the house at the auction, it's pretty much a nightmare.

So is your HOA willing to take up house payments, utlities, maintenance, due payments, realtor costs to sell, and legal costs on this property? Then your pretty much shooting yourselves in the foot for a foreclosure route...

Former HOA President

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 12:17 PM
Then your pretty much shooting yourselves in the foot for a foreclosure route...

So what is your recommendation?

PetunkaM (Florida)
Posts: 1,009

Posted:

PetunkaM:::: With all due respect. What would be your suggestion for a mutually agreeable solution?

The board has a duty to uniformly enforce the governing documents against the owners and other residents of the property. "A BOARD DOES NOT HAVE THE AUTHORITY TO WAIVE OR EXCUSE COMPLIANCE WITH THE REQUIREMENTS OF THE COVENANTS" (James)

Really? Since the homeowner has dug in their heels they should just give up and not take away his home? Why not just send out a letter to all homeowners telling them the HOA won't really do anything to enforce covenants anymore. (Brad)
___
James and Brad,

not a good idea to assume the Board is always right or the owner is always right. In this instance, there are just too many unanswered questions, in my mind anyway. And yes, I believe in compromise whenever possible. For that, you do not need to hang me.

If the Board in question will go with ‘injunctive relief’ that could cost many thousands $ in legal fees. And the possibility that the Association will not prevail is always there. And, if the BOD goes for foreclosure that is not el cheapo either. And then what? Another $10K for restoring the house to its orginal condition and selling it? Looks like $30-$50K loan to me.

Melissa’s suggestion to bring it out and discuss it with the membership at some special meeting makes sense. Know, the Board already paid $5K in legal fees.

Lawrence,

if I were you I would question the attorney re the 'fines'. I firmly believe you cannot charge $25/day unless it is authorized in your docs. Plus, a certain procedure must be followed. Attorneys do make mistakes, believe me. You may want to ask him to give you a written statement that such fees are authorized not only in this instance but in every instance; othewise he could find a way to blame this error (if there is an error) on something and your fees will double. Experience speaks.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 9:29 AM
I am just hoping you realize that foreclosure isn't an option in this situation. It's far from it. If the owner isn't paying their dues, then foreclosure comes into the picture. If it's for violations, it does not. Plus the HOA doesn't want to foreclose as it is NOT a money making proposition and does the work of the bank. It's a stop gap/stop the bleeding action NOT a punishment....

This is an issue that needs to be addressed with ALL the owners to see how they want to proceed. Is this such a violation that would effect their home values or is it one that could be acceptable it's just not in the rule book? The rules of the HOA is made up by the homeonwers to live by. They aren't static. See if this is such a majority eye sore that the owners agree to action to be taken and willing to pay for it...

Really...our documents and the state of Kansas allow us to foreclose on fines....when since should the entire membership be enacted to make a decision on this? That sounds like a train wreck waiting to happen. The board was elected to handle these issues and they need to handle it. If you decide to let this go then what mechanisms do you have in the future to make folks abide by the covenants?

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 12:51 PM
PetunkaM:::: With all due respect. What would be your suggestion for a mutually agreeable solution?

The board has a duty to uniformly enforce the governing documents against the owners and other residents of the property. "A BOARD DOES NOT HAVE THE AUTHORITY TO WAIVE OR EXCUSE COMPLIANCE WITH THE REQUIREMENTS OF THE COVENANTS" (James)

Really? Since the homeowner has dug in their heels they should just give up and not take away his home? Why not just send out a letter to all homeowners telling them the HOA won't really do anything to enforce covenants anymore. (Brad)
___
James and Brad,

not a good idea to assume the Board is always right or the owner is always right. In this instance, there are just too many unanswered questions, in my mind anyway. And yes, I believe in compromise whenever possible. For that, you do not need to hang me.

If the Board in question will go with ‘injunctive relief’ that could cost many thousands $ in legal fees. And the possibility that the Association will not prevail is always there. And, if the BOD goes for foreclosure that is not el cheapo either. And then what? Another $10K for restoring the house to its orginal condition and selling it? Looks like $30-$50K loan to me.

Melissa’s suggestion to bring it out and discuss it with the membership at some special meeting makes sense. Know, the Board already paid $5K in legal fees.

Lawrence,

if I were you I would question the attorney re the 'fines'. I firmly believe you cannot charge $25/day unless it is authorized in your docs. Plus, a certain procedure must be followed. Attorneys do make mistakes, believe me. You may want to ask him to give you a written statement that such fees are authorized not only in this instance but in every instance; othewise he could find a way to blame this error (if there is an error) on something and your fees will double. Experience speaks.

I also believe in compromise...normally that takes two parties though and haven't gotten an indication that the homeowner is willing to dance

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

I also believe in compromise...normally that takes two parties though and haven't gotten an indication that the homeowner is willing to dance

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 12:51 PM
if I were you I would question the attorney re the 'fines'. I firmly believe you cannot charge $25/day unless it is authorized in your docs. Plus, a certain procedure must be followed. Attorneys do make mistakes, believe me. You may want to ask him to give you a written statement that such fees are authorized not only in this instance but in every instance; othewise he could find a way to blame this error (if there is an error) on something and your fees will double. Experience speaks.

Our association is covered by Georgia state law section 44-3-223 which says:

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.

We have been charging fines for covenant violations for years, and have had them upheld in court several times. There is no question about our ability to assess fines, nor that $25 per day is an appropriate amount. However, we have never before had a homeowner absorb the fines and do nothing. Usually, once the fines start the homeowner is moved to take action. With the fines not working, we are faced with taking additional steps.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By LawrenceC1 on 09/11/2011 10:11 AM

Posted By MelissaP1 on 09/11/2011 9:29 AM
The members could vote to have a special assessment to raise the money to fix the issue.

div>

I fail to understand why it would be acceptable to pass this charge onto the rest of the association. This homeowner did not follow the documents and not sure why his actions are being defended by some.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By BradP on 09/11/2011 1:01 PM
I also believe in compromise...normally that takes two parties though and haven't gotten an indication that the homeowner is willing to dance

Brad,

You are reading the situation correctly. We have looked for a compromise and haven't found one.

Either the covenant violation is remedied or it isn't. There is not a lot of middle ground here.

There is no support for having the association share in the costs of remedying the situation, since the homeowner proceeded without getting prior approval, and refused to stop when the work was in progress.

And we are well beyond the point of simply passing on the violation. To do this would undermine our ability to enforce any violation in the future.

Believe me, if there was a compromise possible I would be all over it.

PetunkaM (Florida)
Posts: 1,009

Posted:

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;

Lawrence, this provision says your docs (association instrument) must authorize such fines. The legal opinion you posted says the same thing. Never mind.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 12:17 PM
Why are you stuck on foreclosing? This is a BAD idea. I know, I've done it.

I understand that you have been through the foreclosure process, and I value your experience. However, what I am hearing from our lawyer doesn't line up in all aspects with what you have experienced.

Quote:

It can costs thousands of dollars

We're being quoted $1,500 for everything. That's still a lot for us, but it's manageable.

Quote:

the bank gets paid first

True enough, but we're not looking for any money here. We just want the violation fixed. The new buyer would be obligated to fix the problem due to our outstanding ‘Notice Of Covenant Violation’ lien.

Quote:

your HOA doesn't have the right to foreclose on a property for unpaid fines.

At least in Georgia, we do have that right. and are seriously considering exercising it.

Quote:

Heaven forbid if the HOA got the property. That's even worse. The HOA would not only have to pay all their legal costs associated with foreclosure, they'd have to pay the bid price which IS the cost of the foreclosure Plus $1

True again, but I'm hearing that the $1,500 would cover this as well.

Quote:

and ASSUME the mortgage on the property.

The first mortgage holder retains their lien, and the association will own the property subject to that lien, but we will not assume the mortgage. That's an agreement between the previous owner and the bank. The association could negotiate with the bank to satisfy the lien, perhaps by taking out a new mortgage, or the association could just wait for the bank to foreclose its lien out from under the association. Then we would look to the buyer at the bank's foreclosure to fix the problem and take possession of the property.

Quote:

Some states allow the owner to come back and claim the house back up to a YEAR plus improvements AFTER the foreclosure. So the HOA would have to hold onto the property for a minimum of a year.

In Georgia there is no such provision. After foreclosure the previous owner has no residual rights.

Quote:

Unless you can find another buyer for the house at the auction, it's pretty much a nightmare.

Certainly finding a buyer who would pay enough for the house to cover the first mortgage lien and a little more would be wonderful. But even without that happy result, I think we could live with the consequences of a foreclosure.

PetunkaM (Florida)
Posts: 1,009

Posted:

IF I could I would bet a case of champagne that no judge in his right mind would rule for the foreclosure these days when the mortgagee supersedes everything else. Plus the fine you are imposing is flaky to begin with. I have no idea what your covenants say about the architectural control and how this guy violated them. No one here knows. That is the best kept secret on this tread.

In addition, such foreclosures now take 2-4 years anyway. I think your $1.5K attorney may live on a different planet or something else is going on and you are telling. In any event, dream on.

PetunkaM (Florida)
Posts: 1,009

Posted:

This homeowner did not follow the documents and not sure why his actions are being defended by some (Brad)

Brad, can you plase explain how did you come to that conclusion? I really would like to know.

PS: Sorry, do not mean to interrupt your football. At least Philly won tonight, Michael Vick was not bad.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By PetunkaM on 09/11/2011 6:48 PM
This homeowner did not follow the documents and not sure why his actions are being defended by some (Brad)

Brad, can you plase explain how did you come to that conclusion? I really would like to know.

PS: Sorry, do not mean to interrupt your football. At least Philly won tonight, Michael Vick was not bad.

Simply making an educated assumption based on the OP's statements that the owner did not submit a request, did not stop the project when the HOA asked him to and has not responded to fines after 3 months. Of course there are two sides to every story but I am going off of what Lawrence has supplied us.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I had to go to work before I could come back an reply. That 1500 does NOT cover everything. It covers the lawyer's bill, but not the other costs associated with the foreclosure. Once you foreclose, do you think the violation is going to be fixed? NO. Who's going to do it? You've kicked the owner out. The bank isn't going to do it. The new owner isn't responsible as you seem to believe. The foreclosure just kicked the member out and left the violation behind. The HOA still has to get permission to enter the property to fix the violation even after the foreclosure. So your back at square one.

It seems the lawyer does basically what you tell them to do. It's like going to the doctor and telling him you want a prescription for Zyrtec because you saw it on TV. The doctor is going to prescribe you that medicine but did he do an exam to find out if you needed it or not? The same with the lawyer. Your telling him you want to do a foreclosure, and he says "Okay" here's the bill... He doesn't care about the "details" of the situation. They just know how to handle the paperwork.

I just don't see a foreclosure as your answer. The lien is your option. It's a slow process but it's a process. You never know when they may have enough and decide to sell. Do you want to have nothing filed when that times comes?

Your option still is to repair the violation and lien for the repairs. The process of how you do this should be discussed with the lawyer. Maybe this time, a real discussion and not will you write a letter?...

Former HOA President

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 10:29 PM
That 1500 does NOT cover everything. It covers the lawyer's bill, but not the other costs associated with the foreclosure.

Melissa,

Could you list everything that you paid for the foreclosure you went through? I'm sure things aren't exactly the same in Georgia as in Alabama, but it may not be all that different here.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By BradP on 09/11/2011 8:05 PM
Of course there are two sides to every story...

Brad,

In the interest of fairness, I can present the "other side", based on letters from the opposing lawyer.

The homeowner says that a contractor was doing work across the street on another home and offered a special deal if the work started while the construction crew was already in the neighborhood. To take advantage of this deal, the homeowner did not have the time to go through the application and approval process. The homeowner contends that if the work had gone through the proper process that it would have been approved, and the Association has started this fight simply because they are annoyed that the process was ignored. Neither side disputes the fact that the approvl process should have been followed and wasn't.

So that's the other side in this matter.

JamesC (Maryland)
Posts: 282

Posted:

Quote:

Posted By MelissaP1 on 09/11/2011 10:29 PM

I just don't see a foreclosure as your answer. The lien is your option. It's a slow process but it's a process. You never know when they may have enough and decide to sell. Do you want to have nothing filed when that times comes?

Your option still is to repair the violation and lien for the repairs. The process of how you do this should be discussed with the lawyer. Maybe this time, a real discussion and not will you write a letter?...

MelissaP1

A lein is "DEFINITELY" a slow process which you have to file, and refile every year. We have had liens on about five homeowners in our private community for at least the past seven years. Probably why we are owed over $30k in back assessement fees. My suggestion has always been to foreclose on the one with the highest debt to set an example. It is hard to persude a majority of eight other board members to go along.
In Larry's situation, if the violating homeowner has cast his feet in concrete to make such a stand against the Association, I would think he has no intentions of giving in to where he "might have enough and decide to sell"

Jim

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By JamesC on 09/12/2011 6:32 AM
I would think he has no intentions of giving in to where he "might have enough and decide to sell"

Jim,

I agree with you on this. The homeowner will not do anything unless forced to do so.

As far as the lien, in Georgia we have an excellent law called the Property Owners Association Act (POAA). This law provides for automatic statutory liens on any Lot that owes money to the Association. We don't have to file each year, or file at all for that matter.

In this case, we have filed a ‘Notice Of Covenant Violation’ lien with Fulton County that would place anyone considering the purchase of the property on notice that the property has a problem that requires resolution. Furthermore, and more importantly, this kind of lien requires the resolution of the covenant violation as a condition of release to obtain clear title to the property. See Filing A Notice Of Covenant Violation Lien.

So we have the money lien and the covenant violation lien in place, we are assessing daily fines, and we have notified the homeowner that they cannot use the pool and tennis courts. So far, none of this has moved the homeowner to action.

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