HOA issues and fines

Started by TrentonS • 27 replies • 4243 views

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TrentonS (Pennsylvania)
Posts: 6

Posted:

I will try to keep this short...After living here with our dog for 4 years our condo association decided for the first time to enforce the weight limitation of the pet policy in the CC&R's this Fall. When we first moved here other large dogs resided within the condo association and the pet policy was never enforced for over 20+ years. Two years ago the new board members decided they were going to begin enforcing the weight limitation of pets and sent us a letter stating that we were currently in violation but understand that we are emotionally attached to our pet and in an unfortunate event would not be allowed to replace our current pet with one that at full maturity will violate the pet policy. Two years ago when we received that letter the HOA also sent updated and revised rules and regulations to all unit owners stating that the pet weight limitation will be strictly enforced in the future and failure to comply will result in a $50 fine. We called the President then and she said that the letter sent to us was to protect us from the pet policy being enforced on us, but they want to stop future move-ins and future pet purchases from violating the pet policy.

After forcing another unit owner (who purchased their dog within the past 2 years) to remove their dog, that homeowner stated they were going to file suit against the HOA for discrimination because of our dog still residing with us. The HOA has now come after us to get rid of our dog. We are the only people left with a large dog that resided here when the waiver letters were mailed out.

Questions-
1. Is the waiver the HOA provided us with valid (it is signed by the previous president)?

2. Can the HOA allow 4 years to go by, give us a waiver, and then enforce the pet policy on us?

3. Since the weight limitation was never enforced for over 20+ years is that rule enforceable?

4. Lastly, the current President called me the other day to ask me if we got rid of our dog. I refused to respond to his question and told him that he cannot fine us if he does not know if we are in violation. Two days later we received a letter stating we were being fined $1400 for the month of December and it must be paid within 10 days or a claim will be filed in small claims court. It also said that we would continue to be fined $50 per day until we provided evidence that our dog no longer resides here. Do we really need to provide evidence that our dog does not reside here or do they need to provide evidence for each day they are fining us for?

Thanks for your help!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Let them sue you. Make them prove their case. I would then make sure to counter sue them. They may be able to levy the fines keep in mind but have to have a fining schedule in place to do it.

To save you some money you may not need a lawyer to file the counter suit. You should be able to reply to their suit. Which regardless you should reply. You did not mention the type of dog? If it is a pit or other similar dog breed considered "vicious" you may have to jump through additional hoops. Not that your dog is vicious in any shape or form. There just happens to be laws on the books when it comes to certain breeds. I would talk to animal control on that.

I am a HUGE dog person and hate to here stories of HOA's forcing people to get rid of their dogs. I did pick out my 2 adoptees based on their size when I moved into my HOA home just because the size of the area and house. It is a consideration one needs to evaluate when moving into such places. so can understand the HOA's perspective too. Just to play Devil's advocate.

Just make sure to counter sue them if they want to go through with their threats. Otherwise, let sleeping dogs lie...

Former HOA President

JohnB26 (South Carolina)
Posts: 1,569

Posted:

let me get this straight:

you are (and were) in violation of a contractual restriction (albeit unenforced)

you are now twisting and squirming to evade your long standing actual violation

you think that because you were not previously caught it is now OK

W~T~F IS WRONG WITH YOU?

question: How long does a thief need to maintain possession for the 'booty' to become his?

MORAL answer: It never becomes his even though the statute of limitions may have expired.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

p.s. your internet post is proof positive of your ongoing violation

hope your BOD does not have a computer or the ability to seach for 'key words'

you have been fed rope and have used it to hang yourself

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Sorry for the rude poster on here. He just has issues and they are not yours or mine. Please keep asking questions and we will help you and NOT insult you. That is NOT the purpose of this board.

Former HOA President

TrentonS (Pennsylvania)
Posts: 6

Posted:

No need to get nasty. Not trying to squirm my way out of anything. Just looking to know the HOA use of waivers and if they can continue fining us per day until we show them "evidence" that our dog is removed.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

It is not a valid waiver, because no one in the HOA has the authority to grant a waiver to violate your CCR/bylaws. The paper is worthless.

Now you can fight the rule, based on the fact that the HOA has not enforce it in 20 years. It might cost you a good deal of money, and no guaranteeing you will win, but that is your choice.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Do we really need to provide evidence that our dog does not reside here or do they need to provide evidence for each day they are fining us for?

You could just wait to talk to the judge. But remember if you lie to him, you could be in contempt and face fines and jail time.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Trenton,

Grandfathering is one thing and waivers are something else.

Unless the governing documents allow the Board to waive covenants, the Board may not grant a waiver for anything that is a violation to those covenants (they just don't have that authority).

If the weight limit was imposed after you had your dog, you would likely be grandfathered and the waiver would be for grandfathering you for that one pet.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

I will try to keep this short...After living here with our dog for 4 years our condo association decided for the first time to enforce the weight limitation of the pet policy in the CC&R's this Fall. When we first moved here other large dogs resided within the condo association and the pet policy was never enforced for over 20+ years.

the restriction WAS in the CCRs when the OP moved in .... VIOLATION was clear
brusque .... perhaps
rude .... i asked a 'sarcastic' question

based upon the OP's statement .... which part of my reply was incorrect?

the facts, while unpleasant to hear, are still facts

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The fact that it was never enforced or addressed before 2 years ago is a clue that the HOA just woke up. The people had the dog longer than that along with other people who had dogs that size. It was only 2 years ago the OP said they started cracking down. Considering they had the dog a few years before notification and enforcement with a letter of acknowlegement of that fact should prove grandfathering. The HOA failed to take action years ago and now want to retroactively enforce a rule that generally wasn't enforced.

I say they can enforce the rule but only after they have proven they are enforcing it from a certain clear date. Picking a time out of the sky isn't enough. It should be recorded in their meeting notes at the minimum they are going to enforce this rule.

The real issue with owning big or vicious breeds in a HOA isn't really a HOA issue. It is an individual's insurance issue. The owner's insurance company can indeed make the owner pay more money/premium for owning a known vicious breed. The size of the animal really is how much dog your willing to live with. A Great Dane in a 1 bedroom condo is a bit much. I don't see the use in a HOA being in the pet restriction business when there is such a thing called "Animal control".

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MelissaP1 on 01/14/2013 6:20 AM
The fact that it was never enforced or addressed before 2 years ago is a clue that the HOA just woke up.

This has been discussed before.

Typically Associations (like members) have the authority to enforce but not the requirement to enforce. However, if the Association does enforce they must do so across the board or risk legal action based on selective enforcement.

It's also typical for the governing documents to have language similar to the following: "Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

The OP's current Board, for whatever reason, has now chosen to start enforcing the pet weight limit covenant. Yes, it's lousy when it applies to pets. I'm a dog person as well and, if I was on that board, would likely try to work a compromise with everyone. However, I'm not on that board and the members of that board, for whatever reason, chose to enforce this covenant on one member/resident and in that process was informed of the OP's pet. Therefore, they are now having to also enforce the covenant on the OP.

The OP stated that they had a waiver from a previous board. It is unclear if the previous board had the authority to grant a waiver or not. It is unclear if the OP provided this waiver to the current board and/or how the current board responded.

Since the unclear isn't clear, we are left with the bottom line: had the OP and others within that Association complied with the covenants when they were selecting a pet, they would not be facing an enforcement issue now.

JeanneK3 (Maryland)
Posts: 562

Posted:

I believe there is a big difference between the person who had his dog grandfathered in by the board and someone who knew he shouldn't buy a large dog.
Grandfathering in existing pets is a very humane way to start to enforce a neglected covenant and is commonly done across the country. If you have this exception in writing from the board, I do believe a court would back you up.
Your board is overreacting to the new dog owner and they should be suing that guy with the new dog, not you.
Try to reason with your board.
Jeanne

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Grandfathering in existing pets is a very humane way to start to enforce a neglected covenant and is commonly done across the country. If you have this exception in writing from the board, I do believe a court would back you up.

The CCR not allowing dogs is over 20 years old. There is no grandfathering unless the dog is over 20 before the CCR was created.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By TrentonS on 01/13/2013 1:26 PM
I will try to keep this short...After living here with our dog for 4 years our condo association decided for the first time to enforce the weight limitation of the pet policy in the CC&R's this Fall. When we first moved here other large dogs resided within the condo association and the pet policy was never enforced for over 20+ years. Two years ago the new board members decided they were going to begin enforcing the weight limitation of pets and sent us a letter stating that we were currently in violation but understand that we are emotionally attached to our pet and in an unfortunate event would not be allowed to replace our current pet with one that at full maturity will violate the pet policy. Two years ago when we received that letter the HOA also sent updated and revised rules and regulations to all unit owners stating that the pet weight limitation will be strictly enforced in the future and failure to comply will result in a $50 fine. We called the President then and she said that the letter sent to us was to protect us from the pet policy being enforced on us, but they want to stop future move-ins and future pet purchases from violating the pet policy.

After forcing another unit owner (who purchased their dog within the past 2 years) to remove their dog, that homeowner stated they were going to file suit against the HOA for discrimination because of our dog still residing with us. The HOA has now come after us to get rid of our dog. We are the only people left with a large dog that resided here when the waiver letters were mailed out.

Questions-
1. Is the waiver the HOA provided us with valid (it is signed by the previous president)?

2. Can the HOA allow 4 years to go by, give us a waiver, and then enforce the pet policy on us?

3. Since the weight limitation was never enforced for over 20+ years is that rule enforceable?

4. Lastly, the current President called me the other day to ask me if we got rid of our dog. I refused to respond to his question and told him that he cannot fine us if he does not know if we are in violation. Two days later we received a letter stating we were being fined $1400 for the month of December and it must be paid within 10 days or a claim will be filed in small claims court. It also said that we would continue to be fined $50 per day until we provided evidence that our dog no longer resides here. Do we really need to provide evidence that our dog does not reside here or do they need to provide evidence for each day they are fining us for?

Thanks for your help!

I'm in California, so keep that in mind. According to the California Condo Guru, there is a 5-year-statute of limitations on enforcement of HOA violations. See this article.

So I would suggest you look into the statute of limitations in your state.

Then, I'd also ask for a forum to discuss the weight limitation. Sometimes it may be hard to enforce because when you buy a puppy, you don't necessarily know how big it will grow. I've had a collie who as 40 lbs., but I've seen others in the 90 lbs. range. I also seen an obese collie that weighed in over 100 lbs.

There's a bigger problem with the waiver. What the HOA is now saying is that it can, at will, rescind any decision that a previous board made. This is dangerous because it also means that the board could easily reverse itself meeting by meeting.

Our board tried this with us and took us to court on two decisions that was unanimous by a previous board. The small claims court judge threw it out. Luckily, we had newsletters and a letter from a former board member as proof.

The president should not be calling you. Contact should be per your CC&R which is usually written and personal delivery or snail mail. It should be from the board, usually as a written notice written by the secretary.

This might be seen by a small claims court judge as harassment as you have a piece of paper that gives your approval.

TrentonS (Pennsylvania)
Posts: 6

Posted:

Thanks for all of your help. We have tried reasoning with the board for over 3 months now and they fail to tell us why they refuse to accept the letter the previous board gave us stating we can keep our pet for its lifetime. The CCR's state that the president "shall have any or all of the powers and duties ordinarily attributable to the chief executive of a corporation." Does that indicate that the president has a right to provide unit owners a waiver? The waiver we have is signed by the previous president. I'm no lawyer but I see our argument two-fold - if the waiver is valid then we can keep our pet; if not, the HOA acted negligent and acted beyond their power in providing us with a waiver that we relied on to be valid and has caused us harm and financial loss.

Also, what are your thoughts on the BOD's ability to fine us without any evidence that we are currently in violation? (And no JohnB I am not stating I am currently in violation). Their letter to us with the $1400 fine says they are assuming we still have our pet and will continue to be fined per day until we provide evidence that we removed our dog. Does the evidence of a violation fall on the unit owner or HOA? How do per day fines work? Do they need to see the violation occur in order to fine us each day?

KevinK7 (Florida)
Posts: 1,343

Posted:

$1400 dollar fine for owning a dog the BOD told you was okay to have because they failed to enforce the C&Rs?

That fine sounds very unreasonable, especially considering the previous BOD granted you a waiver, and from what I am reading from PA statutes for condo law, the HOA has the authority to "levy reasonable fines for violations of the declaration."

That leads me to my first question: What exactly do the C&Rs say about fines?

Secondly, when did this new BOD come to power and when did they start calculating your fines?

Thirdly, what do the C&Rs specifically say about weight limitations and how much does your dog weigh?

TrentonS (Pennsylvania)
Posts: 6

Posted:

Quote:

Posted By KevinK7 on 01/14/2013 6:59 PM
$1400 dollar fine for owning a dog the BOD told you was okay to have because they failed to enforce the C&Rs?

That fine sounds very unreasonable, especially considering the previous BOD granted you a waiver, and from what I am reading from PA statutes for condo law, the HOA has the authority to "levy reasonable fines for violations of the declaration."

That leads me to my first question: What exactly do the C&Rs say about fines?

Secondly, when did this new BOD come to power and when did they start calculating your fines?

Thirdly, what do the C&Rs specifically say about weight limitations and how much does your dog weigh?

The CCRs simply state the HOA has the right to levy fines. They believe $50 per day is reasonable for any violation. The current BOD came to power either March of 2011 or 2012. The CCRs state your dog must be 30 pounds or under. Our dog is not considered a vicious breed, but the CCRS state nothing about the breed of dog.

GlenL (Ohio)
Posts: 5,491

Posted:

Well unless your dog is toilet trained, it will be fairly easy for the BOD to know your mutt is still about. I agree that you violated the CC&R's and the dog should have been banned 4 years ago but since it wasn't and since the BOD seems to be in knee-jerk reaction mode, I would pay an attorney to send the BOD a sharply worded letter stating that you relied on the "waiver" and threaten to go to war over the dog.

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

JohnB26 (South Carolina)
Posts: 1,569

Posted:

$1400 dollar fine for owning a dog.........That fine sounds very unreasonable..........

not at all .... the fine is for willfully not complying with the contract (CCRs)

pay up ... comply ... no more fines

CeceliaV (North Carolina)
Posts: 30

Posted:

It certainly sounds like your HOA has been negligent for the past 4 years if they have not enforced the CC&Rs.

At this point all would be better served if an agreement could be reached ie you can keep this dog but not replace it with another large dog.

Granted HOAs have rules that must be followed but when you get to this point and ask a pet owner to get rid of the dog they have had for 4 years it would seem some common sense is called for.

I could not bear to be in your situation; I could not imagine being told to get rid of my rescue dog.

If there doesn't seem to be any solution between you and the board to benefit all, you could contact animal rescue organizations. They could be helpful in a situation like this. You could also contact local news --we have one station that has a segment for people who cannot find a solution to a problem. I imagine you could get a lot of support from all the animal lovers.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I agree with a few folks on your issue, Trenton, and like Glen's approach best. Send your letter to the Board. Let them take you to court. I don't think that the Board's order to get rid of your dog or the amount of the fine pass the test of reasonableness.

Of course the previous board was wrong to try to override the CC&Rs with a waiver. But assuming your dog isn't a safety threat to your HOA and doesn't create noise or other nuisances, I think you'll come out just fine.

Out of curiosity-- just how much does your dog weigh?

TrentonS (Pennsylvania)
Posts: 6

Posted:

We have already had a lawyer write a letter to the BOD pleading our case, but it was unsuccessful. The statute of limitations in PA is 4 years, but our lawyer was not sure if that applies to the CCR's because it is an ongoing contract. We have pleaded for a reasonable compromise but the BOD will only do what they are instructed to do by their lawyer. Their lawyer is telling them that they need to fully enforce the CCR's and that we do not have a case. Even with a lawyer threatening litigation they sent us a fine for $1400. I don't understand how my HOA thinks they can issue a fine to us without even knowing if we are in violation. The HOA has made my life miserable the past few months and I don't see why the burden of evidence should be placed on me to prove I got rid of my dog to stop future fines.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

you ARE and HAVE BEEN in violation

? are you willing to risk a perjury conviction ?

TrentonS (Pennsylvania)
Posts: 6

Posted:

Quote:

Posted By JohnB26 on 01/15/2013 3:59 PM
you ARE and HAVE BEEN in violation

? are you willing to risk a perjury conviction ?

What if I don't have my dog and they are fining me. Doesn't that classify as them harassing me! Why do I have to show them evidence that I got rid of it. The evidence should be on them.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

What if I don't have my dog and they are fining me. Doesn't that classify as them harassing me! Why do I have to show them evidence that I got rid of it. The evidence should be on them.

LOL. This is funny.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By TrentonS on 01/15/2013 5:17 PM

Posted By JohnB26 on 01/15/2013 3:59 PM
you ARE and HAVE BEEN in violation
? are you willing to risk a perjury conviction ?

What if I don't have my dog and they are fining me. Doesn't that classify as them harassing me! Why do I have to show them evidence that I got rid of it. The evidence should be on them.

I would think they would first have to present proof that you have a dog that violates the C&Rs. The letter from the previous board establishes that fact (unless your large dog is skinny and weighs less than 30 lbs. Does it?). Now proving you no longer have the dog - has the board outlined how exactly they would want to accomplish that?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

a sworn (notarized) letter stating 'the dog is gone' followed by never again seeing the dog in question on the property

or

the judges ORDER to do EXACTLY the same (get rid of dog)

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