Mediation, conflict resolution, negotiation

Started by FrankV5 • 24 replies • 1943 views

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FrankV5 (Maryland)
Posts: 9

Posted:

Our 65 town home HOA experienced a resident who had a non-approved patio slider door installed after being told that it was a violation. The Board is trying to avoid court-lawyer-suing scenario, but at the same time flexing our muscles to avoid being thought of as ineffectual.

Has anyone had experience with mediation, conflict resolution, negotiation to keep from complete surrender to hold our ground, yet correct the improper installation in defiance of our non-approval?

JM10 (California)
Posts: 503

Posted:

Our HOA agreed to meet in mediation with us as a part of the small claims court judgment. I write to indicate how either side can act.

Although this was part of the judgment, the board never showed up to mediation. We were able to sign a mediation contract through negotiation with the insurance agent, but the contract was signed by the directors while again violating the very statute we had taken them to court about (Open Meeting).

They continued to violate the contract, even after the insurance paid a sizable amount--most of which went to cover the attorney fees. We lost money on the whole situation. The only thing that makes it bearable, is that we moved.

So, it take two parties dealing in good faith for mediation to work. In our CC&R and our state, mediation is required if the member requests the board and mediation is required before taking an issue to superior court.

FrankV5 (Maryland)
Posts: 9

Posted:

Thank you JM10,

That's exactly what we are trying to avoid... getting lawyers involved. We are debating a face-to-face confrontation versus a neighborly hand written note (NOT on legal stationery) to point out the violation. We have the authority to place a lien on the property, which must be satisfied before a sale can occur - - but that may take years before the resident decides to move.

Since the replacement patio sliders are hardly noticeable (backs up to woods), the defiant installation after rejection of the application has now become the point in a power struggle. The Board and ARC do not want to appear as a toothless tiger, and are willing to negotiate a settlement, BUT we wish to avoid legal fee$ fro both parties.HELP!

LarryB13 (Arizona)
Posts: 4,099

Posted:

Frank,

Mediation works when both parties can be flexible. I don't see that happening here. The owner was told before-hand that the door was a violation and installed it anyway. The only resolution satisfactory to the assocation would be its removal. There is not much room for negotiation, so mediation would not work in this instance.

Just out of curiosity, has the owner explained why he went ahead with this door knowing that it was a violation?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Frank,

You were posting while I was typing so I missed your update. This may change things.

From the first post, I was under the impression that there was a black-and-white restriction in the CC&R's against the type of door that the homeowner installed. It now appears that it may be more complicated than that.

From what I understand, many associations require approval of an ARC before an owner may make an external change. I always find this troubling because it makes the owner's property subject to the whims of committee instead of concrete standards set forth in the declaration. An ARC means that what is permitted and what is not is the result of one owner making a request to a particular committee on a particular day. Change the owner, the make-up of the committee, or the date, and the results may be different.

If the type of door installed by the owner is absolutely, positively prohibited by the clearly stated restrictions in the declaration, you have a case for enforcement should you choose to do so. But if the declaration fails to state a prohibition and leaves such matters up to the discretion of an ARC, the homeowner has a stronger case than the association and who will ultimately prevail will depend on who goes bankrupt first. A simple, face-saving way of dealing with this is to let the ARC change their decision to one of approval.

You yourself noted that the patio door is hardly noticeable because it backs up to the woods. If the deer and muskrats in the forest are offended, let them make a complaint to ARC.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 10/12/2012 10:46 PM
Frank,

You were posting while I was typing so I missed your update. This may change things.

From the first post, I was under the impression that there was a black-and-white restriction in the CC&R's against the type of door that the homeowner installed. It now appears that it may be more complicated than that.

From what I understand, many associations require approval of an ARC before an owner may make an external change. I always find this troubling because it makes the owner's property subject to the whims of committee instead of concrete standards set forth in the declaration. An ARC means that what is permitted and what is not is the result of one owner making a request to a particular committee on a particular day. Change the owner, the make-up of the committee, or the date, and the results may be different.

If the type of door installed by the owner is absolutely, positively prohibited by the clearly stated restrictions in the declaration, you have a case for enforcement should you choose to do so. But if the declaration fails to state a prohibition and leaves such matters up to the discretion of an ARC, the homeowner has a stronger case than the association and who will ultimately prevail will depend on who goes bankrupt first. A simple, face-saving way of dealing with this is to let the ARC change their decision to one of approval.

You yourself noted that the patio door is hardly noticeable because it backs up to the woods. If the deer and muskrats in the forest are offended, let them make a complaint to ARC.

Well said. I agree.

PaulT6 (California)
Posts: 409

Posted:

You could notify him in writing, hold a hearing and start a fine process. I don't know what your GD's say but we can no longer lien for unpaid fines. Suspending voting and amenity privileges is all we can do so in our case fines are next to being meaningless.
In your case I wouldn't take it any further, save your bullets for another day. If he complies you could suspend or forgive the fine(s).

Paul T

MelissaP1 (Alabama)
Posts: 13,836

Posted:

In our HOA we had an option to remove violations. It is kind of aggressive to some here but our documents allowed this without it being considered "trespassing". If a person was in violation, we the HOA could remove the violation and send the violator the bill. If the violator did NOT pay that bill, we could then place a lien on their property for that amount.

As someone stated before, fines typically can NOT be used as the basis for liens or foreclosures in most states. However, damages can be. That means that damaging HOA property and the money the HOA has to pay out to restore it, is subjected to liens. Violations or repairs costs can be considered damages in certain situations. The HOA still has to pay out money to fix the damage/violation before they can attempt to get their money back through lien or small claims. It can't just be based on assumptions. Damage/money spent has to occur.

It's nice to extend this to mediation. However, typically a HOA does require a lawyer to represent them or a competent member the HOA has chosen to represent them in court. Not too many competent people I know that I would have represent me without a legal degree/experience. So good luck and maybe just form a violation committee to hear the case.

Former HOA President

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By MelissaP1 on 10/13/2012 10:09 AM
In our HOA we had an option to remove violations. It is kind of aggressive to some here but our documents allowed this without it being considered "trespassing". If a person was in violation, we the HOA could remove the violation and send the violator the bill. If the violator did NOT pay that bill, we could then place a lien on their property for that amount.

As someone stated before, fines typically can NOT be used as the basis for liens or foreclosures in most states. However, damages can be. That means that damaging HOA property and the money the HOA has to pay out to restore it, is subjected to liens. Violations or repairs costs can be considered damages in certain situations. The HOA still has to pay out money to fix the damage/violation before they can attempt to get their money back through lien or small claims. It can't just be based on assumptions. Damage/money spent has to occur.

It's nice to extend this to mediation. However, typically a HOA does require a lawyer to represent them or a competent member the HOA has chosen to represent them in court. Not too many competent people I know that I would have represent me without a legal degree/experience. So good luck and maybe just form a violation committee to hear the case.

We have basically the same thing and call it "alternative remedies". I don't know about your part of the country but in our area if this case went before an arbitrator or a judge it would be thrown out in a heartbeat. Suggest you do what you can according to your GD's and move on. Going on to his property and removing the door would be risky business, in my opinion. We will and have done this only in extreme cases of health or safety reasons, like forest fire safety. These cases give our Board EXTREME cases of heartburn.

Paul T

FrankV5 (Maryland)
Posts: 9

Posted:

Our HOA covenants state that we can "..enter upon such Lot and to take such steps as may be necessary to remove or otherwise terminate or abate such violation and the cost thereof..."

Our Attorney says "DON'T DO IT" We don't want to tear out the 12 foot wide expensive patio door just because it is the wrong color and has mullions dividing the glass. We are considering a fine and a lien approach (apparently allowed in Maryland)so that it is not allowed to remain in violation for the next buyer. We may try a "friendly" letter first, stating our authority from the Covenants.

Should we make all of the residents aware that one of our number has chosen to ignore our direction and proceed with a non-approved door? Will this backfire when we air our dirty linen so everyone else is aware of the difficulties the Board must deal with on their behalf? WE don't want to end up being the bad guys.

FrankV5

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Frank

I say send a nice letter quoting the BOD's right to ask the door be changed. No deadlines, no threats, but ask for a reply.

No need to air dirty laundry in public. No need to go telling anyone. If asked about the door reply we are working with the owner on an agreeable solution.

Hope this helps.

FrankV5 (Maryland)
Posts: 9

Posted:

Thank you John, Paul and Melissa.

We are hoping for cooler heads to prevail, since the Covenants support us. If mediation and negotiation don't work, has anyone had experience with small claims court to cover our cost of repainting?
Frank

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By FrankV5 on 10/14/2012 7:48 PM
Thank you John, Paul and Melissa.

We are hoping for cooler heads to prevail, since the Covenants support us. If mediation and negotiation don't work, has anyone had experience with small claims court to cover our cost of repainting?
Frank

I might have missed this, but why was the door not approved? If this is a minor issue, I'm not sure that the small claims court judge will have patience with it.

We went before two judges and the second judge barely had patience with the basic production of documents. That case was originally in court in February, went back in May and we still don't have the documents. The documents we requested are state required filings and it is likely that these now have late fees attached (should have been filed in July of last year) and the non-filing status of the HOA will, with enough time, result in a suspended status for the HOA as a corporation.

These are fairly important documents.

The other judge was more diligent. However, the HOA still didn't fulfill the judgment--even with an attorney on our side.

I have to wonder if this would really be worth the time and money?

In any case, our experience in small claims court was that the judges might not care about the CC&R or state requirements so much and a lot depended upon the judge. Getting judgment fulfillment even after you win, is not so easy.

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By JM10 on 10/15/2012 3:15 AM

Totally agree. In my opinion, if you went before any of our local judges with this they would chastise you for wasting their time. Suggest you save your bullets.

Paul T

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By FrankV5 on 10/14/2012 7:48 PM

We are hoping for cooler heads to prevail, since the Covenants support us. If mediation and negotiation don't work, has anyone had experience with small claims court to cover our cost of repainting?

Even if the covenants support you, I wouldn't advise going through the process of entering private property and repainting.

Our Association Attorney actually advised us that even with the covenants allowing it, entering private property without a court order could be considered trespassing. He also suggested that unless it's a safety issue, it would be a tough sell to the courts.

FrankV5 (Maryland)
Posts: 9

Posted:

I can see this will be a losing proposition. She was told BEFORE purchase that the door was the wrong (not matching)color, and had mullions, cutting the clear picture window view into many smaller panes.... which NO OTHER home has. When asked why she went ahead in defiance, she replied:"...because I wanted it and they can't do anything about it."

The Board is looking to do something to maintain some degree of uniformity while not going to court, where a judge would probably throw all of us out. We were pleased she even made an application Committee approval, but dismayed when she rebuffed our suggestion to alter her choice.

Thank you all for your assistance.

FrankV

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FrankV5 on 10/15/2012 1:51 PM
I can see this will be a losing proposition. She was told BEFORE purchase that the door was the wrong (not matching)color, and had mullions, cutting the clear picture window view into many smaller panes.... which NO OTHER home has. When asked why she went ahead in defiance, she replied:"...because I wanted it and they can't do anything about it."

The Board is looking to do something to maintain some degree of uniformity while not going to court, where a judge would probably throw all of us out. We were pleased she even made an application Committee approval, but dismayed when she rebuffed our suggestion to alter her choice.

Thank you all for your assistance.

FrankV

He might even fine you for bringing it to him? Seriously, it looks like about the only thing you can do is to follow your rules. Assuming they may be somewhat like ours:

1. Notify in writing

2. Hearing

3. Start fining

As we can no longer lien for unpaid fines, the only downside to our Member is suspension of voting and amenity privileges, basically worthless. Your mileage may vary.

There may be more serious issues down the road:

1. Renters

2. Junk cars on blocks (comes with the renters)

3. Unsightly, unkept properties, houses painted bright purple

4. Large commercial vehicle and construction equipment parking and storage

5. Loose dogs

6. Unsupervised, unruly, loose kids

7. And the list goes on and on

Paul T

FrankV5 (Maryland)
Posts: 9

Posted:

Dear PautT,

We will count our blessings that this violation will (effectively) harm no one.

Your worst case scenario future problems are a nightmare.

FrankV

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FrankV5 on 10/16/2012 2:52 PM
Dear PautT,

We will count our blessings that this violation will (effectively) harm no one.

Your worst case scenario future problems are a nightmare.

FrankV

If you don't have any of these problems, good for you, keep up the good work. About 20 or so years ago our HOA started to let things slip. HUGE mistake, it was a long and bloody battle to bring things back to where they should be. Overall, we are in pretty good shape now but it takes constant work to keep it that way. As mentioned before, it is really hard to put the toothpaste back in the tube.

Paul T

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul raises a good point.

Recently got into a discussion concerning a casual/social golf organization I am a member of. No Bylaws (nor do we want any) but a few loosey goosey rules.

Bottom line is we might need to enforce one of our loosey goosey membership rules and it is against one of the nicest/most liked guys in our group.

One of the guys in the discussion group was a big time player in union negotations (union side) with a national company. He was drawing a hard line. At first I did not like the hard line but he said if we do not draw a line for so and so, how many others will accuse us of not being fair? Let us be fair to all.

After I thought about it, he was right.

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By JohnC46 on 10/16/2012 5:06 PM
Paul raises a good point.

Recently got into a discussion concerning a casual/social golf organization I am a member of. No Bylaws (nor do we want any) but a few loosey goosey rules.

Bottom line is we might need to enforce one of our loosey goosey membership rules and it is against one of the nicest/most liked guys in our group.

One of the guys in the discussion group was a big time player in union negotiations (union side) with a national company. He was drawing a hard line. At first I did not like the hard line but he said if we do not draw a line for so and so, how many others will accuse us of not being fair? Let us be fair to all.

After I thought about it, he was right.

Yes it can be a hard call. We had a case where a Member planted trees and shrubs on the common area separating our Maintenance building and his house to mitigate the noise, dust, and visible impacts. Earlier, our Assn made a token effort to do the same thing but did not maintain the trees and shrubs and they died, so the Member replaced and maintained them. At the hearing our Committee had no choice but to find the Member in non-compliance. HOWEVER, we explained the appeals process to him, which he did. At the appeal we recommended the Board grant the Member a variance which they did.

Over the 16 years I was on the Committee one of our primary goals was to be consistent with our rulings, regardless of concerns for the Member's personal situation. At times we would extend compliance deadlines and/or suspend fines but that was about it.

Paul T

FrankV5 (Maryland)
Posts: 9

Posted:

Points well taken, Paul. AND... that is exact where we are! The word on the street here is: "Do anything you want, the Board won't do anything."

Well the Covenant-abiding members are getting tired of scofflaws rubbing our faces in " IT " more and more frequently

Neglected repairs and painting of private (Non-common)areas, after notification, are affecting the whole community appearance and probably all of our property values. Unfortunately, some of these properties are rentals-absentee landlords. So we have decided to draw the line; we plan to notify the owners to comply or the HOA will pay to make the repairs/re-paint fences and then bill to the owner for the cost to us.

We have not decided (pending legal opinion) if we should levy a fine or proceed to small claims court, but we are tired of a few bad apples spoiling our whole barrel.

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FrankV5 on 10/22/2012 9:48 AM
Points well taken, Paul. AND... that is exact where we are! The word on the street here is: "Do anything you want, the Board won't do anything."

Well the Covenant-abiding members are getting tired of scofflaws rubbing our faces in " IT " more and more frequently

Neglected repairs and painting of private (Non-common)areas, after notification, are affecting the whole community appearance and probably all of our property values. Unfortunately, some of these properties are rentals-absentee landlords. So we have decided to draw the line; we plan to notify the owners to comply or the HOA will pay to make the repairs/re-paint fences and then bill to the owner for the cost to us.

We have not decided (pending legal opinion) if we should levy a fine or proceed to small claims court, but we are tired of a few bad apples spoiling our whole barrel.

Frank,

From an earlier post:

"If you don't have any of these problems, good for you, keep up the good work. About 20 or so years ago our HOA started to let things slip. HUGE mistake, it was a long and bloody battle to bring things back to where they should be. Overall, we are in pretty good shape now but it takes constant work to keep it that way. As mentioned before, it is really hard to put the toothpaste back in the tube."

It will be a difficult process, the more rentals you have, the harder. Suggest you check your Governing Documents before having your Assn do the work. If you can't lien for this it is likely you will never recover the costs. Another concern may be the owner claiming you came onto his property and did "unauthorized damage" to his property without his permission. Might be good to run it by an attorney before taking physical action.

Paul T

FrankV5 (Maryland)
Posts: 9

Posted:

Thank you Paul for your advice. The voice of experience rings true.

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FrankV5 on 10/26/2012 10:36 AM
Thank you Paul for your advice. The voice of experience rings true.

frank,

You are welcome, it would be interesting to know how it all comes out.

Paul T

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