Renters, Due Process and Violation letters.

We know that the non-resident absentee owner is bound by the Covenants and that we don't have a lot of control over the tenant's behavior; but here's my question. When a tenant consistantly violates the convenants, we usually just send a letter to the absentee owner. Wouldn't you think that it would be prudent to cc: the renter on these letters??? What's common practice?

Mike, your HOA may chose to sent up procedures which will provide some control over renters. Granted the owner is the responsible party. But you can require rental agreements be approved by your Board and include items required by the Board. You can set up stiff penalties for the owner and include what actions shall automatically terminate a rental agreement. I think it is a good idea to include renters in association activities and would send a copy of each correspondence on problems to the renter.

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Roger Borcherding
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DARCO Property Management (Colorado)
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Roger, Thanks for the sound suggestions. Your last sentence is what I was looking forward to seeing. We are in fact in the process of working with our attorney and PM, in order to revamp DUE PROCESS. Right now, there are too many letters going back and forth. I would like to stiffen up penalties but I think that we're limited by the Virginia Property Owners' Association Act, Va. Code Ann. §§55-508 to 55-516.2. (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-513). The amount of any charges so assessed shall not be limited to the expense or damage to the association caused by the violation, but shall not exceed fifty dollars for a single offense or ten dollars per day for any offense of a continuing nature and shall be treated as an assessment against the member's lot for the purposes of § 55-516. And so... 55-513. Adoption and enforcement of rules. However, the total charges for any offense of a continuing nature shall not be assessed for a period exceeding ninety days. After the date a lawsuit is filed challenging any such charges, no additional charges shall accrue. If the court rules in favor of the association, it shall be entitled to collect such charges from the date the action was filed as well as all other charges assessed pursuant to this section against the lot owner prior to the action.

I am going to research "what actions shall automatically terminate a rental agreement." That would be very interesting and effective if implemented.

I keep reminding myself that VA is commonwealth and not a state. Oh well.

This may be all a bunch of overkill. As someone who did rent out my HOA property, I can tell you the nightmare tenants I had. However, you will find that tenants have rights to that the owner can't violate. It can take 6 months to a year to evict someone! So don't assume the absentee owner isn't doing anything. It's their property and they are paying for it. Do you think they aren't upset and frustrated by having a bad tenant?
My renter didn't pay rent for 5 months! He moved a baby emu in the backyard and told the HOA landscapers NOT to mow! He also owned motorcycles and often worked on them in my house and the yard! The grease/oil stains never got out of the carpet! You can just imagine my anger plus having to be delivered letters from the HOA about his behavior. I was completely legally helpless.
In my state, you give a renter 1 ten day notice to vacate the premises. A second 10 day notice is issued after that is up in order to actually vacate. The notices don't count weekends nor holidays! The renter does have the right to PROTEST the notices and respond in the court. If they do "protest", they are given another 10 day extension for a possible resolution. If there is NO resolution, the process starts all over again. That means that legally a tenant could stay several months in your property without paying rent and get away with it. As long as they keep responding to the notices properly. It took me over 2 months of notices to get my tenant out. I finally had to get the Sheriff's department to kick them out. (I had put a for sale sign up in the yard to encourage them to move out). That finally worked but still never got paid my rent. Had to take them to small claims court where I won a judgement. Still NOT paid!
If your worried about renters, give more power to the owner's to be able to control their renters. Owner's have issues too with their tenants that laws protect. So you may want to find out if the owner is truly an "absentee" owner who is getting the notices and ignoring them or an owner who is dealing with the legal system to remove the tenant. I would also strongly suggest you make sure you have the correct legal address of the absentee owner. Technically, it can still be the address in the HOA's which where the tenant is living. I would try to send notices to BOTH places. That way the tenant is also aware the owner knows what is going on.

I agree the CC&Rs should be amended when necessary. As I stated "your HOA may chose to sent up procedures which will provide some control over renters." I didn't say the Board should do it; only that "require rental agreements be approved by your Board and include items required by the Board." I do believe the Board can pass Rules defining the details as allowed by the CC&Rs.

Hello Harold:

The Board has a fiduciary duty with regard to the owners and keeping property values as high as possible. Some association documents contain rental restrictions and others (especially older ones) may not. Most documents allow the Board to pass resolutions that are binding on the members, that relate to restrictions in the CC&R's.

Some rules would be made by resolution and others would be by an amendment. A self-managed board has a duty to get educated on these issues (particularly with regard to what their state requires/allows) and may need to seek out classes and/or legal counsel in some issues in order to fulfill their fiduciary duty, whereas a board that uses a manager can usually rely on the management company's advice on these issues.

If a board is self-managed, they take on a higher level of involvement in the day-to-day operations of the community, and some of these rental rules would put an additional burden on them. However, those that use a manager put this duty onto the manager for day-to-day operations.

J. Patrick Moore, CMCA

Thanks! I was president of my HOA and had to deal with the rental situation. We had one house no one lived in for 10 years! It was built and abandoned. Brand new house! The owner's wanted to "hold onto it" for investment. Never rented it out. A realtor took me to look at it once. It had cobwebs, no air conditioning (90+ outside), and the roof leaked in the garage over the electrical panel! It was a mess. What I could I do about that situation? Force an owner to put people in it?
Yes, it is all about the communication and getting the right addresses of the owners. We had one guy who was illegally "squatting" on a property. The guy had moved into a house with his girlfriend, she moved out after their breakup. He didn't. She was the renter. The owner out of town, thought his renter had vacated the premises. Turns out the boyfriend with no lease was living there! The HOA was able to contact the owner, and the owner was able to not only kick the guy out, but was able to "sue" him in court. One of our board members was asked to testify to confirm the times the man was living in the house. The owner won.
So there are many more situations out there besides dealing with "Rental". If it's not one thing, it's another. Holding the owner's feet to the ground and informing them, is the best option. If the owner gets upset and stops paying the dues, the HOA can foreclose on the house leaving no option of renting or owning. That would get anyone's attention. Why then worry about making rules against renting if the HOA already has that power if dues aren't paid?
Besides rental restrictions falls with mortgage/loan companies. They put on the restriction of use of the property as rental.