Selective treatment of members

Philip,

Contract law applies as the CC&Rs are a contract between you and your neighbors.
Most CC&Rs specify that Assessments are to be paid. If this is the case with your documents, then the Board may not waive assessments.

However, a board may waive fines, charges and costs of collection.

Can you provide a little more detail?

Tim

There's always Fair Housing depending upon the situation.

www.hud.gov/fairhousing

Gee, Glen,

Are you trying to put forth an idea that there should be some link between facts and advice? That's preposterous! The advice here is free (and worth every penny) and very seldom has anything to do with any facts.

I appreciate all you guys weighing in. More specifically, the HOA is under Declarant Control. All homeowners were thousands of dollars in arrears going into 2012. (Don't ask.) The Declarant recently sent notice that "All owner accounts will be recast to a zero balance starting with January 1, 2012" and followed with statements mailed to all members reflecting the zero balance. EXCEPT THAT my lot had a previous (but pre-2012) special assessment which still appeared on my 'new' statement. I say his 'directive' should have eliminated this charge (since it was pre-2012) in order to 1) follow his own BOD directive, and 2) treat my account the same as other members.

Thanks Tim. Specific situation is this: the Virginia based HOA is under Declarant Control. All homeowners were thousands of dollars in arrears going into 2012. (Don't ask.) The Declarant recently sent notice that "All owner accounts will be recast to a zero balance starting with January 1, 2012" and followed with statements mailed to all members reflecting the zero balance. EXCEPT THAT my lot had a previous (but also pre-2012) special assessment which still appeared on my 'new' statement. I say his 'directive' should have eliminated this charge (since it was pre-2012) in order to 1) follow his own BOD directive, and 2) treat my account the same as other members (all of whose statements did in fact reflect the zero balance).

Philip,

I again ask, have you checked with other neighbors to see if they had already paid that special assessment and, if not, was it waived?

Just because another neighbor's balance shows zero, it doesn't necessarily indicate that the special assessment was waived. They may have paid it which is why it doesn't show. Have you asked neighbors?

I'll also add a second question, have you asked the declarant about the charge?
It's possible it's a mistake. If you asked, what did the declarant say?

Ahh, more information. As the information changes, the advice may change.

What you have is a fine.
Per VA § 55-513. Adoption and enforcement of rules, and likely per your own governing documents, Fines may be treated as Assessments for lien and disclosure purposes.

Since your violation is disputed (your words) and not resolved, the fine would still be enforceable.

Since this amount is a "fine" and not an "assessment" (it's just being treated like one), the Declarant is not treating you differently. He has waived your assessment just like he waived other assessments.

If you care to share:

What was the violation for?
Was the violation brought into compliance, waived or does it still exist?


I am not an attorney and I do not work within the legal profession. I am simply offering advice based on the information within your postings, my personal experiences and research. If any of those things change, it's likely the advice will change.

If you want a legal opinion, you will need to contact a local attorney.


Based on what your posting, I'm not sure that the declarant isn't complying with the directive issued.

Your initial posting was stating that the declarant was "absolving one member from assessments that others are forced to pay"
Then it changed to "EXCEPT THAT my lot had a previous (but pre-2012) special assessment which still appeared on my 'new' statement"
Your most recent post stated that "he special assessment ($2000) was levied against my lot only as it was for a purported (and disputed) violation"

There are many questions that need to be answered before this question can be properly answered:

Since the special assessment is based on a violation:
1) Is this assessment based on a fine?
2) Is this assessment based on damage done to common area that needed fixed?
3) Is this assessment based on reimbursing the Association/Declarant for work done or legal fees to bring the violation into compliance?
4) Was the violation brought into compliance, waived or does it still exist?

In case you don't want to share, I can offer this advice:

1) If the assessment was a fine, as I posted earlier, fines are treated as assessments but are not assessments.

2 & 3) If the declarant expended money to bring the violation into compliance, it makes sense that they would want those monies returned. Therefore, those funds would not be waived.

4) If the violation still exists, the fine will likely continue until it's brought into compliance or the issue resolved.


The short answer is YES.

As an example: My Association will waive late charges on delinquent accounts for those members who are occasionally late in the payments BUT we will not waive late charges on those who are always late.

Philip, I know that this advice isn't what you really want to hear. However, that is the way things work sometimes.

If the violation still exists and isn't resolved, you may want to try and resolve the issue offering to bring the violation into compliance if the fees/charges are waived. If you believe that you are not in violation and are just butting heads with the association over the issue, it's likely that the assessment will stay in place.

Remember, I know nothing of your issue other than what you have posted. This is just how I see the issue based on what has been provided.

Hope this helps,

Tim

Tim, thanks for your thoughtful responses on this. I am not an attorney either so am "flying blind" most of the time! A few points:

I do not see the word 'fine' in 55-513 or anywhere else in the POAA. I do see the phrase, "and shall be treated as an assessment against the member's lot for the purposes of § 55-516..." I guess I don't see where the semantics are what's important here.

You probably have already gleaned that we have major issues here. I have only posted here a skirmish within a battle within a nuclear war... On the big stuff, there are attorneys flying all over the place out here. (When everyone is $16,000 in arrears, you no doubt already guessed that.)

I did not want to get into the weeds of my lot's 'violation' only because I didn't want to bore folks, and because I actually considered it irrelevant. My original question is (still): Can the Declarant (BOD) properly issue a directive effectively 'wiping out' ALL account balances, but then subsequently continue to post the $2K entry on my statement (effectively countermanding his own directive)? And if he does, is this not discriminatory treatment?

That said, I sense you are curious about the violation, and I'm glad to share. After five homeowners lived in the subdivision for several years, we finally had to file suit to have the Developer/Declarant pave the road. A couple weeks prior to the road paving (and after we had lived here over two years with no violation!), he isued a 'violation' notice that we had compromised the drainage ditch in front of our lot. (We did not.) But VDOT had the contractor construct proper drainage ditches all up and down the subdivision's road. The Declarant then billed me for the 'extra' work for the ditch repair in front of my lot. Of course, the VDOT work itself destroyed any 'evidence' since the ditches (all in disrepair) were all made good. Bottom line is the Declarant was pissed that we made him pave the roads, and the violation was some sort of school yard retaliation.

I really appreciate your input. We Virginia guys neeed to stick together!