proof of a vioaltion

Started by FredB4 • 23 replies • 1819 views

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FredB4 (Ohio)
Posts: 375

Posted:

The only threads I can find on this seem to go off topic. The Association has a rule. Resident (owner or tenant) breaks the rule. Owner is sent warning letter... correct situation or be fined. Owner ignors letter, repeats the violation and is fined. Owner wants to see what "proof" the Association has. We don't follow people around with a camera, so my question ... what is legally considered adequate "proof" ?

BradP (Kansas)
Posts: 2,640

Posted:

Fred

I think proof needs to be a picture or an independent witness statement. As you go into a court of law if it is a he said, she said without independent witnesses or proof you have a hard time. Violations should be either videod or photographed with a time/date stamp. If you have a resident independent of the board willing to sign a statement I would potentially consider that, but under no circumstances should it just be the boards word against the resident.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The most important part is a fining schedule. Showing that a violation has this punishment. Example: Garbage cans being put in a certain place and removed by a certain time. A fining schedule must be understood that this is a $25 fine. If you don't have this, a picture or witness doesn't mean anything.

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 11/02/2012 2:20 PM
The most important part is a fining schedule. Showing that a violation has this punishment. Example: Garbage cans being put in a certain place and removed by a certain time. A fining schedule must be understood that this is a $25 fine. If you don't have this, a picture or witness doesn't mean anything.

you can't fine someone for something you can't prove existed...so you say my garbage can was there, I say it wasn't, do you have proof?

CarolR11 (Colorado)
Posts: 2,563

Posted:

Because we're urban twin towers, we have an onsite PM, Mgr. Asst. & usually two security officers on duty. One of them corroborates a rules violation complaint and may take pics too. We'd never call someone to hearing for a possible fine without confirmation of the original person's complaint. So, I'm with Brad.

(Yes we have a Schedule of Fines, but that wasn't the question.)

PaulT6 (California)
Posts: 409

Posted:

Fred,

We take pictures of everything that can be photographed. For things that can't be photographed we require the complainant to appear at the hearing or if that is not possible, to provide a written, signed statement. I can't remember any cases where the respondent said we couldn't prove the complaint. Many, many people will not agree to appear or will they sign a statement.

Paul T

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fred

There has been a lot of discussion on this topic.

The general thinking is that when a BOD, Committee, etc. has been notified of a violation (regardless of how notified) that they should "investigate" the alleged violation and if the violation is valid then they should become the "official/legal complainer", not the person who notified them.

Also, if no violation was found then they should inform the person that notified them that they found no violation and at this time, they will be taking no action on the complaint.

Where I the complainer and I did not like the action of the BOD (disagree or ignore), then I always have legal recourse at my disposal (cost).

JohnH38 (South Carolina)
Posts: 100

Posted:

One resident in foreclosure in my community no longer pays the monthly assessment that includes garbage removal ergo the BOD made him contract for his own trash removal. Garbage pickup is on Mondays and refuse receptacles should be stored out of view from the street by Monday night hence "may result" in a $25 fine. The above resident is the only one having his picked up on Fridays! Another garbage truck for recyclables comes around every two weeks for only 2 out of 143 residents on Thursdays. These Leviathans cause much damage to the roadways and are noisy. I brought it to the attention of the board, the president said it would be taken into consideration. Still holding my breath and turning blue! Only solution is to put up and shut up.

FredB4 (Ohio)
Posts: 375

Posted:

Well there is no doubt that the violation is occuring and we do require more than one person to witness the violation actually more than one board member. I just think that following residents around with a camera seems a little extreme and the resisdent can always continue to lie. For example an owner doesn't pick up after their pet. You take a picture. The owner says yes that is me but I forgot to take a bag with me, however I went back out immediately after and picked up the mess and you weren't there to take a picture of me doing that. That could go on forever.

It has always been my understanding that board members are officers of a private corporation and have the legal authority and obligation to ensure that the governing documents are followed. As such, nothing more is needed other than their word and the approval of a majotity of the board. The board, of course, has the responsibility to be sure that any violation is properly verified and fairly administered.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnH38 on 11/02/2012 7:59 PM
One resident in foreclosure in my community no longer pays the monthly assessment that includes garbage removal ergo the BOD made him contract for his own trash removal. Garbage pickup is on Mondays and refuse receptacles should be stored out of view from the street by Monday night hence "may result" in a $25 fine. The above resident is the only one having his picked up on Fridays! Another garbage truck for recyclables comes around every two weeks for only 2 out of 143 residents on Thursdays. These Leviathans cause much damage to the roadways and are noisy. I brought it to the attention of the board, the president said it would be taken into consideration. Still holding my breath and turning blue! Only solution is to put up and shut up.

John

Are saying that because his trash barrell is out on Fridays he should be fines?

Are you also complaining about the recycle trucks as they are not part of the association dues?

What are your issues?

Thanks

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FredB4 on 11/03/2012 5:48 AM
Well there is no doubt that the violation is occuring and we do require more than one person to witness the violation actually more than one board member. I just think that following residents around with a camera seems a little extreme and the resisdent can always continue to lie. For example an owner doesn't pick up after their pet. You take a picture. The owner says yes that is me but I forgot to take a bag with me, however I went back out immediately after and picked up the mess and you weren't there to take a picture of me doing that. That could go on forever.

It has always been my understanding that board members are officers of a private corporation and have the legal authority and obligation to ensure that the governing documents are followed. As such, nothing more is needed other than their word and the approval of a majotity of the board. The board, of course, has the responsibility to be sure that any violation is properly verified and fairly administered.

In our case very seldom is the respondent present. If so, our Compliance Inspector will advise the person of the violation, always followed by a letter to the OWNER. We have been using pictures for 16 years and I can't remenber anyone disputing the validity of them. I am sure everything can vary and am not advocating everybody use pictures, They work for us.

Paul T

FredB4 (Ohio)
Posts: 375

Posted:

I don't dispute the idea of a picture ... worth a thousand words etc. ... but I just don't see how a picture proves anything unless it is a date/ time stamped video and even that can be disputed.
There has to be some legal authority given to the BOD to uphold the rules, regulations etc. without having to follow people around with a camera. However, if you have people who have the time and are willing to do that ... no argument here.

GlenL (Ohio)
Posts: 5,491

Posted:

Just about every cell phone made in the past few years comes with a camera and most people have their cell phones with them 24/7 and if you immediately send the pic to someone it will have a time and date attached to the file. At least mine does.

If you want to make it totally fair adopt Florida's requirement of an independent fine committee made up of non-Board members or their relatives. The Board issues the fine, the H/O has fourteen days to appeal before the fine committee, which either rules for the Board or the H/O.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By FredB4 on 11/03/2012 9:51 AM
There has to be some legal authority given to the BOD to uphold the rules, regulations etc. without having to follow people around with a camera. However, if you have people who have the time and are willing to do that ... no argument here.

5311.081 Powers and duties of board of directors.

(B) Unless otherwise provided in the declaration, the unit owners association, through the board of directors, may exercise all powers of the association, including the power to do the following:

(12) Impose interest and late charges for the late payment of assessments; impose returned check charges; and, pursuant to division (C) of this section, impose reasonable enforcement assessments for violations of the declaration, the bylaws, and the rules of the unit owners association, and reasonable charges for damage to the common elements or other property;

(reasonable enforcement assessments - bureaucratic doubletalk for fines)

Studies show that 5 out of 4 people have problems with fractions

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FredB4 on 11/03/2012 9:51 AM
I don't dispute the idea of a picture ... worth a thousand words etc. ... but I just don't see how a picture proves anything unless it is a date/ time stamped video and even that can be disputed.
There has to be some legal authority given to the BOD to uphold the rules, regulations etc. without having to follow people around with a camera. However, if you have people who have the time and are willing to do that ... no argument here.

Fred,

We don't follow anybody around. We have a full time Staff of about 60 people. One of them is our Compliance Inspector who responds to Member's complaints and also does a pro-active inspection of our 6,400 properties on an ongoing scheduled basis. He takes pictures of junk cars, garbage spills, parking on the dirt and so on. The picture always has the house in the background, pretty hard to dispute. Works for us, your mileage may vary :-)

Our Covenants Committee holds hearings and applies fines. Our Board only gets involved when there has been an appeal. In the last 16 years that I was chairman we have only had 6 appeals, none of which were granted.

Paul T

JohnH38 (South Carolina)
Posts: 100

Posted:

John

Technically yes they are in violation. The foreclosed folks could use the regular $16 charge instead to "punish" them the BOD forced them to use another contractor at $60 a month. Just stupid IMHO, the association loses by having an extra truck damaging our roads, not to mention the noise.

How much is recycling 2 properties worth when it takes another truck using 2-3 gallons of diesel fuel to doit. I guess it makes the pair feel good.

FredB4 (Ohio)
Posts: 375

Posted:

I do like the idea of a fine committee but ours is a very small community and it is difficult to get enough board members so I'm not sure anyone would be willing to be part of a fine committee ... but maybe worth a try. Since a committee member isn't a legal offical of the association I would be curious how the Florida law is worded. Does anyone have a link ?
Has anyone else tried this ?

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By FredB4 on 11/04/2012 5:01 AM
I do like the idea of a fine committee but ours is a very small community and it is difficult to get enough board members so I'm not sure anyone would be willing to be part of a fine committee ... but maybe worth a try. Since a committee member isn't a legal official of the association I would be curious how the Florida law is worded. Does anyone have a link ?
Has anyone else tried this ?

Fred,

Our By-Laws spell out the Committee's structure and responsibilities. If yours doesn't have any mention of committees I would think the Board could appoint a committee and as long as the Board has the final appeals responsibility that might work. Perhaps similar to establishing a sub-set of covenants rules that are based on your C&R's?

Paul T

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fred

I believe the FL Law says there must be a Fine Appeals Committee and it cannot have any BOD members, nor other committee members, nor relatives, nor spouses, etc. on it.

Sounds like typical politician/bureaucrat/lawyer overkill to me.

GlenL (Ohio)
Posts: 5,491

Posted:

(b) 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.

Studies show that 5 out of 4 people have problems with fractions

FredB4 (Ohio)
Posts: 375

Posted:

Thanks everyone for all your input.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By FredB4 on 11/04/2012 2:10 PM
Thanks everyone for all your input.

Fred

Remember that is FL, not OH. In SC we do not have to have an appeals committee. The BOD could do it.

BethW4 (California)
Posts: 11

Posted:

Too many answers! Proof could be anything that could prove the happening of the crime or offense reported. The acceptance of that “PROOF” in the house of law is discretion. I can’t move to court stating my neighbor stole my wife’s diamond necklace making my doggie the witness. The “PROOF” needs to be sensible indeed!

Legal Transcription at GMR Transcription

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By FredB4 on 11/02/2012 1:49 PM
We don't follow people around with a camera, so my question ... what is legally considered adequate "proof" ?

We have found it very beneficial to use a camera for physical violations. We include a copy of the photo with the letter as this informs the member exactly what we are looking at and see as a violation. It also offers a before and after comparison if the member attempted to correct the issue.

For behavior violations, you typically need to produce a witness. If they want to remain anonymous, then there is no proof.

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