ByLaws and CCR Not Enforced

RobertE6 (Missouri)
Posts: 2

Posted:

I have owned my property for over 12 years now and 4 years ago decided to sell my primary home and move into my secondary home in prep for retirement. I have over this last 4 years performed over 60,000 in improvements. My problem is that the association is not enforcing the Bylaws and CCR restrictions causing a devaluation in property values. Lawns not being mowed, trash around yards, multiple unlicensed vehicles, property sublet or rented out the list goes on and on. I have approached the board several times concerning these matters and still have not been able to get any resolution. While I am not looking to sell at this point I will in the next 4 or 5 years and the whole place has begun to look terrible. I have considered not paying my dues but felt I would go ahead and pay this year until I can research what my alternatives and legal reaction should be. I have put together a letter of intent to sue but have not sent it. How do I get this board or the association to enforce the bylaws and the such and try to get this place turned around. While I am not really looking to sue I have no idea how to approach this. Please Help!

TimB4 (Tennessee)
Posts: 21,060

Posted:

Robert,

Typically, just like the members, the Association has the authority to enforce the covenants but are not required to to enforce the covenants.

That said, it could be an issue of no-one having the time, wanting to be seen as the bad person, or are simply trying to deal with things that are more important. I'd suggest contacting the Board and volunteer your time to help with the enforcement. Then see what they say.

Note: As I said earlier, members also have the authority to enforce. However, they must do it through the court system and you would be bringing legal action against your neighbors which won't make you the most popular person on the block.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Robert, Does your Board have meetings? Do you attend? Has the board said why your HOA seems to be declining? How any are on your board? How many homes? Detached or condos? do you have a property manager?

Can you get a group of others who feel the same way you do to volunteer to form some sort of committee?

RobertE6 (Missouri)
Posts: 2

Posted:

If they are not required to enforce the bylaws and convenants then the HOA becomes useless as far as I am concerned, what is the sense of having meetings,rules and regulations in the community if there is no penalty for abiding by these. While some do and others don't, all get to enjoy the amenities of the association even those who don't pay the dues so why should those of us who do abide the rules and pay the dues continue to do so if there are no penalty for failure to do so. While I understand that these amenities must be maintained and paid for I do not wish to continue to pay for slackers and those who do not wish to maintain property values. Does the association not have a responsibilty to the homeowners who strive to maintain their property and community, and what are the penalties for failure to protect those that do.

TimB4 (Tennessee)
Posts: 21,060

Posted:

Quote:

Posted By RobertE6 on 05/23/2013 9:59 AM
If they are not required to enforce the bylaws and convenants then the HOA becomes useless as far as I am concerned, what is the sense of having meetings,rules and regulations in the community if there is no penalty for abiding by these. . . While I understand that these amenities must be maintained and paid for I do not wish to continue to pay for slackers and those who do not wish to maintain property values.

As you said, the common amenities must be maintained and that is the primary purpose of an Association.

I do understand you concerns about individual owners not maintaining their property. It certainly is a valid concern.

I did say that typically the Association isn't required to enforce. There are some governing documents that do require enforcement. Therefore, you should read your governing documents to see if enforcement is a requirement or not.

Quote:

Posted By RobertE6 on 05/23/2013 9:59 AM
Does the association not have a responsibility to the homeowners who strive to maintain their property and community

Yes they do and what that responsibility is would be identified in your governing documents.

As I said, it might simply be that the volunteers don't have enough time to do everything that they would like to do. If this is the case, they would likely prioritize what needs to be done.

Again, perhaps you can volunteer your time to the Board to serve as an enforcement officer or on an enforcement committee.

Quote:

Posted By RobertE6 on 05/23/2013 9:59 AM
and what are the penalties for failure to protect those that do.

Ah, that questions comes up a lot. The honest answer is that, providing the Directors are doing the job to the best of their ability without knowing breaking any laws or requirements in the governing documents, the penalty would be that the members of the Association would vote them out of office and vote others in who will "protect" the members that do maintain their properties.

Remember, you and other members also have the authority to hold your neighbor accountable when they don't comply with the governing documents. Most don't want to exercise that option and would rather have the Association be the enforcer and I understand the reasons for that.

I just wanted to point out that if the Association doesn't have the time to enforce without additional volunteers and no one is willing to volunteer to assist or if the Board simply doesn't want to enforce and no one else is willing to serve and be the enforcer, each member can still seek a court order to force another member to comply.

I know that this isn't what you really wanted to hear but I hope it helped.

Tim

SharonH9 (Virginia)
Posts: 216

Posted:

Doesn't contract law come into the picture? Wouldn't the association be in breach of contract for not enforcing the bylaws? Couldn't the homeowner sue the association for the breach?

On a positive side note, I actually finally received a member list and December's board meeting minutes and noted that my name is on the ballot. There are 2 vacancies on the board and 3 running including myself. I am sending out campaign postcards to the members. Most of the members will vote absentee (if they vote at all)but maybe some will vote if they see that I have taken the time to contact them.

I'll keep you posted. The meeting in June 15. It will be interesting.

TimB4 (Tennessee)
Posts: 21,060

Posted:

Quote:

Posted By SharonH9 on 05/23/2013 10:55 AM
Doesn't contract law come into the picture? Wouldn't the association be in breach of contract for not enforcing the bylaws? Couldn't the homeowner sue the association for the breach?

If the governing documents required enforcement than technically yes, a member could file legal action for a court order directing the Board to enforce violations.

Realistically, if the volunteers don't have the time to do it, they would likely quit or hire a contractor (property manager/management company) to do the enforcement for them and, based on the court order, raise assessments as required to pay for the contractor. Of course, the unintended consequence for the person bringing the legal action would be having the other members blame them for the increase in assessments and perhaps a special assessment to pay the legal fees.

Additionally, those who were serving might simply quit. Worst case, if no one else wanted to step forward to serve on the Board, the court might appoint a receiver.

However, if there is no such requirement there would be no breach.

The least expensive option all the way around would be for this individual to offer his time and energy to the Board to serve as enforcement officer. Then see if the Board accepts the offer or not.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By SharonH9 on 05/23/2013 10:55 AM
Doesn't contract law come into the picture? Wouldn't the association be in breach of contract for not enforcing the bylaws? Couldn't the homeowner sue the association for the breach?

Yes, contract law could come into play. It would depend (see Tim's point) if the contract language signed by both parties required the board/HOA to do certain things (like enforce) or not.
Assuming the HOA WAS contractually bound to enforce rules, then a Homeowner could indeed sue the board for not enforcing the rules. Of course, the homeowner could also sue the other homeowner for not obeying the rules.

Honestly, the better route would be to sue the non compliant owner. If you win, you collect from the owner. If you sue the HOA, and win, then you collect (in theory) the same amount of damage money, spread out over all the owners (compliant and non compliant, including your own share). So, you not only get a little less than if you sued the other owners directly, you also cost the compliant owners money too.

Which doesn't seem fair, since it was mentioned it wasn't far that the compliant ones were already paying bennies for the non compliant ones. Should they then pay some of their penalties too?

SharonH9 (Virginia)
Posts: 216

Posted:

Quote:

Posted By BrianB on 05/23/2013 3:28 PM

Posted By SharonH9 on 05/23/2013 10:55 AM
Doesn't contract law come into the picture? Wouldn't the association be in breach of contract for not enforcing the bylaws? Couldn't the homeowner sue the association for the breach?

Yes, contract law could come into play. It would depend (see Tim's point) if the contract language signed by both parties required the board/HOA to do certain things (like enforce) or not.

In my situation there was no contract signed by either party as their was no contract. Our lawyer calls it a quasi contract where we would ask the court to make one. It would be based on the amount of expenses incurred by the association and it would be a proportional share. I'm speaking of dues and assessments only. We were asked to pay far more for assessments than the other homeowners. After both parties spent $$$$$ in attorney fees, the HOA settled for way less than what they sued us for. My point is that our attorney said that in Iowa, these are contract cases. There are no specific laws on the books for HOA's.

I am not advocating a lawsuit at all but was just bringing up the point. My experience is that it is far better to communicate than to sue. No one wins. At the pre-trial conference the judge was very stern when he addressed the attorneys. He said "wouldn't your clients money have been better spent by getting them to settle?" We didn't want to go to court and made multiple offers to settle but the Association just would not budge until 4 days before trial.

MatthewW4 (Arizona)
Posts: 500

Posted:

Robert,

In reading your posts you mention possible lawsuits on two different grounds. I am not an attorney but I do have a lot of experience with lawsuits.

1. Enforcement Issues

Whether your HOA has a duty to enforce the CC&R's will be stated in that document. Most associations have no such duty and the CC&R's normally give owners the option of seeking enforcement against offenders in civil court. If enforcement of the CC&R's is discretionary on the part of the board, you have no hope of prevailing in a lawsuit against the association. The courts will not compel someone to act when there is no duty to act. You cannot, for example, get a court order requiring someone to register to vote as that is a discretionary act on the part of the other party.

You can, however, file a lawsuit against whichever owners you believe to be in violation of the CC&R's and seek a court order to compel compliance. You can file one lawsuit against each owner or one lawsuit that names all offending owners as defendants. Generally, if you prevail you will recover all your costs and attorney fees but you will need to file such a lawsuit in a court with jurisdiction to issue injunctions.

2. Devaluation of property issues

Until you actually sell your property, any lawsuits claiming that your property value has been diminished would be dismissed as premature. Your loss is speculative. Even if you sell and get less than you feel the property is worth, you will have an uphill battle to prove your case, although it can be won. But once again, your lawsuit will be against the individual property owners who caused your loss by violating the CC&R's and not against the HOA.

Suggestion

You should document each violation that you believe has occurred on each property and keep this for your records. You should also mail a letter to each offending owner demanding that they bring their property into compliance. The reason for doing this is to establish when you became aware of the problem and when you made the other parties aware. Keeping your mouth shut for years on end implies that you acquiesced to the violations and this will make recovery of damages much more difficult.

You really should discuss all the above with an attorney before deciding on a course of action.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Robert

One thing we have seen on this chat are situations where the market value of may properties has fallen down the toilet and people are looking for someone to blame. Many believe one of the culprits is their HOA. As some have said there might could be recourse to the HOA but my inclination is few of them are the culprits. It is simply market issues, not the HOA's fault.

I am by no means faulting you. I am just comenting.

MatthewW4 (Arizona)
Posts: 500

Posted:

Quote:

Posted By JohnC46 on 05/24/2013 11:01 AM
One thing we have seen on this chat are situations where the market value of may properties has fallen down the toilet and people are looking for someone to blame. Many believe one of the culprits is their HOA. As some have said there might could be recourse to the HOA but my inclination is few of them are the culprits. It is simply market issues, not the HOA's fault.

To prevail in a lawsuit alleging that someone has diminished the value of your property, you would need to identify all the possible causes to the court and then eliminate everything except the one that is the basis of your lawsuit. That's a pretty tall order.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By RobertE6 on 05/16/2013 12:05 PM
I have owned my property for over 12 years now and 4 years ago decided to sell my primary home and move into my secondary home in prep for retirement. I have over this last 4 years performed over 60,000 in improvements. My problem is that the association is not enforcing the Bylaws and CCR restrictions causing a devaluation in property values. Lawns not being mowed, trash around yards, multiple unlicensed vehicles, property sublet or rented out the list goes on and on. I have approached the board several times concerning these matters and still have not been able to get any resolution. While I am not looking to sell at this point I will in the next 4 or 5 years and the whole place has begun to look terrible. I have considered not paying my dues but felt I would go ahead and pay this year until I can research what my alternatives and legal reaction should be. I have put together a letter of intent to sue but have not sent it. How do I get this board or the association to enforce the bylaws and the such and try to get this place turned around. While I am not really looking to sue I have no idea how to approach this. Please Help!

You have owned the property for 12 years and have approached the board. Did the board take any action at all? Do other owners feel the same way?

I would not sue.

I would attempt to better understand the problem. Is it that the board is ineffectual? Are the problems related to rentals?

I would separate each issue and pursue the one that you feel is the most serious and for which you can find support for within the board/membership. If you feel there is little support, then start with the smallest and see what can be done such as trash or mowed lawns. Can you have a community day pickup? Do you have landscaping that is paid for or could your HOA afford it?

In a HOA, you need group support for action. If you can't find it, you might consider selling your secondary and keeping your primary.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By RobertE6 on 05/16/2013 12:05 PM
I have owned my property for over 12 years now and 4 years ago decided to sell my primary home and move into my secondary home in prep for retirement. I have over this last 4 years performed over 60,000 in improvements. My problem is that the association is not enforcing the Bylaws and CCR restrictions causing a devaluation in property values. Lawns not being mowed, trash around yards, multiple unlicensed vehicles, property sublet or rented out the list goes on and on. I have approached the board several times concerning these matters and still have not been able to get any resolution. While I am not looking to sell at this point I will in the next 4 or 5 years and the whole place has begun to look terrible. I have considered not paying my dues but felt I would go ahead and pay this year until I can research what my alternatives and legal reaction should be. I have put together a letter of intent to sue but have not sent it. How do I get this board or the association to enforce the bylaws and the such and try to get this place turned around. While I am not really looking to sue I have no idea how to approach this. Please Help!

You have owned the property for 12 years and have approached the board. Did the board take any action at all? Do other owners feel the same way?

I would not sue.

I would attempt to better understand the problem. Is it that the board is ineffectual? Are the problems related to rentals?

I would separate each issue and pursue the one that you feel is the most serious and for which you can find support for within the board/membership. If you feel there is little support, then start with the smallest and see what can be done such as trash or mowed lawns. Can you have a community day pickup? Do you have landscaping that is paid for or could your HOA afford it?

In a HOA, you need group support for action. If you can't find it, you might consider selling your secondary and keeping your primary.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By RobertE6 on 05/16/2013 12:05 PM
I have owned my property for over 12 years now and 4 years ago decided to sell my primary home and move into my secondary home in prep for retirement. I have over this last 4 years performed over 60,000 in improvements. My problem is that the association is not enforcing the Bylaws and CCR restrictions causing a devaluation in property values. Lawns not being mowed, trash around yards, multiple unlicensed vehicles, property sublet or rented out the list goes on and on. I have approached the board several times concerning these matters and still have not been able to get any resolution. While I am not looking to sell at this point I will in the next 4 or 5 years and the whole place has begun to look terrible. I have considered not paying my dues but felt I would go ahead and pay this year until I can research what my alternatives and legal reaction should be. I have put together a letter of intent to sue but have not sent it. How do I get this board or the association to enforce the bylaws and the such and try to get this place turned around. While I am not really looking to sue I have no idea how to approach this. Please Help!

You have owned the property for 12 years and have approached the board. Did the board take any action at all? Do other owners feel the same way?

I would not sue.

I would attempt to better understand the problem. Is it that the board is ineffectual? Are the problems related to rentals?

I would separate each issue and pursue the one that you feel is the most serious and for which you can find support for within the board/membership. If you feel there is little support, then start with the smallest and see what can be done such as trash or mowed lawns. Can you have a community day pickup? Do you have landscaping that is paid for or could your HOA afford it?

In a HOA, you need group support for action. If you can't find it, you might consider selling your secondary and keeping your primary.