Property Mgr - Not Enforcing Rules

Hello Everyone. I currently serve as the sole resident board memeber for a new condo community still in building phase and lead by the Builder.
Our Property Management contract requires the Property Manager to communicate and enforce the rules and regulations of our covenant.
Residents send complaints and service requests via the Property Management website and per my recommendation we made an agreement early on to have the Property Manager forward any and all complaints to the entire board via email so that we can stay abreast of issues and offer support when needed. I have been in my role going on 1 year and I have recieved 4 submitted complaints forwarded by the Property Manager. I thought we were just an upstanding community until I spoke with some of the residents who said that have sent numerous complaints about other residents not adhering to rules and nothing is being done. I was never made aware of these complaints by the Property Manager.
My goal is to find a resonalble solution to this problem that holds the Property Management accountable for enforcing rules per the contract.
Any recommendations?

Hi Nia:

I would assume that your builder has a person who is president of the board.

I previously managed a portfolio of homeowner associations. Some builders want to be "the nice guy" and therefore do not want to enforce the rules. Yours may be one of them.

I would suggest that you ask the people you talked to, to email the property manager with a copy to you, requesting compliance and asking for a response. If the property manager emails them back without a copy to you, ask them to forward the response to you.

If the developer is tying management's hands, you need to know, so that the Board can take appropriate action after turnover. That may include sending out a post-turnover letter regarding non-compliance with a timeline for owners to come into compliance (typically three weeks notice is sufficient but a month would be nicer) and then following up with violation notices.

Does your HOA have an enforcement resolution that spells out the due process to be followed and the fines for different violations? If not, you may want to see if the management company has a boilerplate one, or check out various HOA websites for theirs. It would be best to have any such resolution reviewed by the HOA's lawyer prior to the board passing it.

J. Patrick Moore, CMCA

Our board will only accept written and signed complaints. This is partly due to the Arizona law requiring notice to the alleged violator as to who filed the complaint, but is also to have the specifics in writing so there are no problems. Sure cuts down on the number of complaints! Harold

The AZ law requiring the name of the person reporting the violation has greatly reduced the number of violations reported by community members.

The intent of the law was to prevent people from maliciously reporting a neighbors violation. The law took it to the opposite end of the spectrum where it's more difficult now to get violations reported.

In our master association we have about 2100 homes with ONE full time paid compliance coordinator on the in-house management staff. It's impossible for him to see every violation and needed to rely on people to let him know.

Now no one will report a violation because when they do, their neighbor will retalliate in some manner. Even if it's just that they stop speaking to you and your family and turn their head when you pass by.

Some say that everyone has the right to face their accuser. Well there's some truth to that, but that belongs to the courts, and it doesn't apply well in an HOA when the neighbor faces the accuser by breaking his windowa, or causing other damage to the accusers property.

With the law as it was before, if a person called in a malicious and false violation the association could then violate the false accuser for creating a nuisance, and that would put a stop to that sort of thing.

Now if people put out their garbage three days early because they're going out of town, and leave it out for two or three extra days, nothing gets done about it unless the inspector happens to come by on a day that it's out in violation. That's because neighbors will not call the violation in.

"{quote} Now if people put out their garbage three days early because they're going out of town, and leave it out for two or three extra days, nothing gets done about it unless the inspector happens to come by on a day that it's out in violation. That's because neighbors will not call the violation in."

I would hope that if a neighbor was going out of town for a few days, that a neighbor would be kind enough to pull the trash can in. Neighbors helping neighbors.

Harold, it's that the neighbors who are in violation are usually ones who think that rules don't apply to them, and when that type receives a letter with a neighbors name on it they want to go over and beat up the neighbor, or damage his yard, key his car, or other things. They will become irate and malicious.

Recently a neighbor reported a violation, and about three days after the neighbor would have received the violation, the neighbor who reported the violation received a phone call from a glass company. They said they were returning his call to make an appointment to replace the broken windows in his house. The owner can't prove who did that, without going to a lot of legal expense to get a court to subpoena the phone records of the glass company, but you know damn well who called the glass company and why. The glass didn't get broken, but there was psychological damage to the homeowner, and he will probably never report a violation again. That is sad.

Recently our board began enforcing a parking policy that previous boards had not enforced. We had a serious problem. The management company, by inspecting once a week, would have taken a year to get this under control. I began doing the work myself, using my name, and got the major problem cleared up in a month. However, there was much antagonism on the part of some individuals who were incensed that we were enforcing a covenant that they were supposed to be complying with all along. They felt that since it hadn't been enforced in the past few years that we should not enforce it now. Our CC&R's state differently, but they didn't care.

One neighbor now turns his head when either my wife or I pass his house. My wife has nothing to do with the board, and is one of the most friendly and outgoing persons, who is willing to help anyone, that I have ever met, yet this neighbor vents his wrath on my wife. This neighbor came to the board meeting and said, "when I got that letter I was so mad that I almost ran right over to your house to---" and he stopped. So I told him that he did the smart thing.

On another occasion, when I reported a teenager who was jumping our common park iron fence that had just had extensive expensive repair, to take a short cut, several days after they got the letter I had a sprinkler line at the sidewalk edge of my yard severed by a sharp object. It was about 9 inches under ground. The landscaper said it looked like someone did that with a sharp object like a shovel.

Yes, an accused has the right to face his accuser in court, but the circumstances in court cases are usually criminal or civil in nature and will not result in the type of retalliation found in HOA's. And you can get restraining orders in court. But how do you get a restraining order from a person for being so rude as to blatantly ignore your wife who has to pass his house when walking our dog. That has a psychological effect on my wife because she is now an innocent victim. And how do you get a restraining order against a neighbor whom you know retalliated and cut your sprinkler, and threatened through a false phone message, to break your house windoes.

So if an accused should be able to face his accuser, should he also be allowed to cause physical damage surreptitiously to your property? Well that's what happens.

In an HOA people respond entirely different that in courts when they're dealing with the police and judges, and the rules of disclosing the accuser should be different in HOA's in order to protect the accuser from having property damage, or in some cases physical and personal damage because of irate members who think the rules are not for them, and calls anyone who does a Nazi spy.

I am available by telephone and email to our community, and in the past week I've had two phone calls complaining about neighbors violating a covenant. The complaints are legitimate, but it's something that an inspector may miss. I tell them to call the property manager and report it, and to be aware that they names will be used on the letter. They then refuse to make the call because they are afraid of retaliation. That is what this law has done, and I don't believe it's working the way it should.

The current law is to protect homeowners from receiving false accusations. However, the first violation letter is a friendly reminder, and if the owner is not in violation, all they have to do is state the facts and the letter will be retracted from their file. Then the association can talk to the accuser and if they continue to make false accusations they can fine them for causing a nuisance.

I understand your position on this issue, and if I sound angry it's because I'm upset with what the law is doing to the communities. It is protecting the bad guy, and does not protect the people who want to have the covenants enforced. I'm not upset with you at all because I know you have good reason for your position, and I respect it.

I know I would definitely think twice about reporting things if it was required that my name be made known. We had an experience with our local police department where they told one of our neighbors that we were the ones that complained about their dog being in our yard and going to the bathroom there. We did nothing wrong but had to sit there and listen to unfounded insults, dirty looks and have our name dragged through the mud because they were mad at us. Not to mention she was rude to our children. Is it worth it, no, if it had not been my yard that was getting damaged I would not have said anything.

Harold I guarantee the reason your complaints have gone down is because people don't want to deal with backlash and retaliation. I understand it is Arizona law, but if your state doesn't have the law then I don't think anonymous complaints are a problem. IF I call in and say there is an RV in my neighbors lot and the board investigates and sees an RV then there is no reason for me to named. If evidence is available then the person should be able to remain anonymous.

As far as being able to face your accuser, what is your defense if an RV is parked on your lot and is captured with a picture, does it matter who turned you in? Does it matter who turned in the picture of your dog going to the bathroom in the common area? Does it matter who turned in the pictured of your dead tree in your lot next to the big pile of trash? What about the peeling paint on your home and the barbed wire fence on your lot? I don't think it does.

Harold, I doubt if you've been on the reciving end of retalliation. I put my name on the 55 parking violation letters as the inspector. I'm the president of our board, and have worked my tail off in getting our community common property in shape, and the 50+ parked cars off our private streets that are parking on both sides of a 28 foot street, where the fire codes only require one side parking.

Our CC&R's prohibit parking, period. Because I had my name on the paper as the inspector I was screamed at by 7 irate homeowners who came to the board meeting to complain about the enforcement. Our covenant states "It is the intent of this section to prevent parking on the streets". That is very cut and dried. And of course the other retaliations that I mentioned.

One resident caught me on the street and bent my ear for 20 minutes and he made the statement that we were using Nazi tactics. That is where the word came from and this person was completely out of line for using that term. And this was from a person who was blatantly violating the CC&R's and violating the fire codes as well. I was 14 when World War 11 was going on, so I'm well aware of the actual Nazi regime and I take great offense when a person who is blatantly disregarding the CC&R's and the fire codes, uses that term against a board member who is doing his job to make the community better.

Because of the law that requires me to put my name because I made the inspection instead of allowing the management company to just send the letter, I had to take an excessive amount of verbal abuse including the Nazi remark, plus a veiled threat to come over and beat me up, and the bad treatment of my wife, which was completely underserved. If you have to go through several sleepless nights because of trying to do your job diligently, by signing your name to violation letters according to the AZ law, and end up having to take crap like I did, and if you have vandalism to your property likd I did, then I guarantee you will change your position.

You are misunderstanding my point. On a different post regarding this same type subject, someone said that in courts the accused has the right to face his accuser. In many cases this is criminal courts and it is very difficult for the alleged criminal to retalliate.

You know that there is no equation with HOA's to criminals, but I made the point that the Law will protect anonymous tipsters regarding people breaking the state laws, but now they have begun protecting the people who will retalliate against a tipster who reports an HOA violation. Why is the Law protecting the tipster in one venue and not the HOA? Who is going to protect the people from getting beat up and having their property vandalized by some irate neighbor because he's ticked off that you signed your name to a complaint.

In the example you used where an accused suspected a person as being the anonymous accuser, they really have no way of knowing who it is because it could be any one of many. They can only suspect, and they probably won't retalliate because they really don't know who to attack.

I hope you never experience what I have experienced because it is not pleasant. However, it is not going to disuade me from doing my job.

The irony of this is that the guy who abuses the rules by parking his RV on friday night and moves it on Tuesday will continue to get away with it because no one will report him, and he won't get violated because if the manager inspector comes on Monday he will have no way of knowing how long the RV has been there.

Paul, I appreciate your comments. There is a success story to this. All but two of the 55 homeowners have complied, including 5 of the 7 who came to the meeting.

At the meeting where they were complaining we told them that the CC&R was so strictly written that it tied our hands, and it would take an amemdment of the community to affect any change. I had to tell one obstinate member that if, as president, I did not enforce the CC&R's, that I would be negligent in my duties, and another homeowner could sue the association, and the board if their house burned down because a fire truck could not get to them due to the parked cars.

And that the insurance company could determine that we were negligent, and not cover us, consequently, making me defend my own negligence which would bankrupt. I told him that I was not willing to place the Association, the other board members, and my family in that type of financial risk; that before I would do that, I would resign from the board and let him take my place and take that risk himself.

One of the members suggested defining "parking" in the rules, so I asked if they would like to form a committee to do that. Every one of the 7 volunteered. This was really a delaying tactic because I knes they could not develop a rule like they wanted, and in committee they would find that out.

However, we told them we needed a committee that represented the community. So we assigned two people who were opposed to parking in the streets; two people who were for parking in the streets; one who was neutral, and to chair the committee we chose a member who owns a management company, and we knew he would be fair. We had a responsible chairman and it separated the committee from the board. (A committee does not have to be chaired by a board member, although it's normally best, but in this case we had an expert in the business as chairperson.)

We wrote a charter that stated the rule they developed must be in concert with our CC&R's and the CC&R's and rules of our master association. (We can be more, but not less restrictive than the master.)

They didn't define parking because there is only one definition which is an "unattended vehicle" and that is what our master association defines parking as.

Their rule came back in really the only form it could have, and that is that when a garage has at least two cars in it, and the driveway is full, and the parking island on their street is full, then they may park on the street in front of their own house. When a resident has a party, the same restriction applies, however, the guests may then park in front of neighbors homes, and a suggestion is to notify their neighbors about the party, as a courtesy.

An exception was made for contractors, landscapers, etc who are working on a residence during normal business hours. Also for board/maintenance committee members who are working on official board business. When not on board business they must comply with the parking rules.

They added that there is no overnight (defined as 10pm to 6am) parking. An exception would be if they receive permission, with a tag for the car, from the management company for a guest when there is no room in their driveway.

This makes for a "reasonable" rule to comply with the very strict covenant of "no parking in the streets" which a judge would be able to uphold.

We had been holding off on making further violation letters until the rule was complete and a week after it is delivered to the community. We still have two homeowners that are being stubborn and are still parking on the street. When the rule has been delivered we will go back to enforcing.

The fine policy first friendly letter gives them 24 hours to correct the violation. After that a seven (7) day notice to fine of $25.00. This brings compliance in a much shorter period of time. If the violation is not cleared after the fine, then at any time we can inspect and send another fine letter for $50. After that it's $100.

After that it's $25 per day. We then have the ability to go to court to collect the fines and to enforce compliance. That's where we are certain that the judge would rule in our favor because of the very strict covenant, and the reasonable rule which allows for the necessary flexibility when there is no other place to park. It would be unreasonable to require that we go outside the community to park.

We will follow through on the fines if we have to. I doubt if we will have to go past the first fine, but I could be surprised.

The success part of the story is that 99% of the community is now in compliance and we are constantly getting comments on how good the streets look and how safe they are. (Much fewer parked cars for kids on bikes to dart out from behind where they may be hit by a car). And much safer because some of these streets are narrow and the fire code only allows parking one side. They were parking on both sides which made it difficult for cars to travel on the street, and could impede a large emergency vehicle.

By having no overnight parking it's easier for a neighbor to spot a car that doesn't belong and can call the police for suspicious circumstances if they feel it's necessary.

After taking all of the verbal abuse, there is much comfort in the fact that we have made a positive impact on our community, and that the majority of the residents approve and comment favorably on the results of the enforcement.

William - We have had our garage doors pelted with eggs. Red paint was splashed on our sidewalk and home (and I didn't miss the significance of the color), my wife was verbally abused and threatened at a board meeting by a member throwing chairs. This is for volunteering and trying to enforce covenants? For HOA infractions???? I mean we aren't talking criminal conduct here.
I admire you for doing your "job", even if it causes your wife stress. Your priorities are your business. My priorities no longer care about enforcement of these rules. I live here. I obey the rules. But I won't take any part in enforcing them ever again. Yes, that is succumbing to intimidation. And no, these rules aren't that important in the scheme of things to be subjected to such treatment.
By the way, your comment "We then have the ability to go to court to collect the fines and to enforce compliance," needs clarification. You can definitely go to court, get a judgment, but the only way you can force them to pay is to file a lien and then wait for the property to be sold. You can't even foreclose on a "fine" lien. And the courts will not ENFORCE compliance of your covenants. How would they do that? A collection agency can huff and puff all they want to, but no one is required to pay an HOA fine unless there is a judgment and lien. Harold

Excuse me Roger: WilliamT is in Arizona and I was replying to his post. I don't know Colorado law and don't pretend to. Harold

Paul, following are the

It's correct that a lien can only be placed for fines after a court injunction, and lien can only be collected when the house is sold. I believe it's also possible that a home lender may require a homeowner who is trying to get a refi to clear the title of the lien before issuing a refi.

Also, the lien would include all of the legal fees which could be extensive, plus the homeowner would alread be out of pocket for legal fees to fight the collection of fees.

However, I believe that once you have a court judgement that you can also collect in other ways, including garnishments instead of liens.

Since the master deed is a legal promise to perform, by not performing (complying with the CC&R restrictions, the homeowner is in breach of that contract. You can sue for "specific performance" where the court orders the defendent to perform in accordance with the contract. If they don't perform, then they are in contempt of the court order and can be jailed for contempt. That's the way I understand being compelled to comply.

Our CC&R's state: "It is the intent of this declaration to prevent parking in the streets." It's difficult to get around that because it spells out the intent. We had one homeowner, who had apparently not read the declaration, state that the intent of the no parking covenant was to prevent people from parking overnight. He lost his argument because the intent is spelled out. The master association has a covenant that a garage must be able to house two vehicles.

To not allow landscapers, painters, etc to park on the street to work would be unreasonable. If a family has a party with 8 cars coming over, and to require the guests to park one mile away would be unreasonable. To require a family with 6 drivers and cars to park one mile away on the street when their garage is full and the driveway is full is unreasonable. So our Rules clarify this, to allow those exceptions. So we believe the Rule is reasonable in light of the very restrictive covenant, and any judge would agree.

However, we don't expect any homeowner to push us to the limit where we're forced to go to court. If they do, then we will take them to court, because by backing down the credibility of the board would be lost, and the violator would encourage others to take the same path. We only have two that are being very hard nosed about this, and their next letter is a fine, so we'll see what happens. We were holding off on compliance until the rules were amended and delivered to the community. One week after they receive the new rules we'll begin enforcement again.

It's unfortunate for your community that people who have violated the declaration have caused you to back away from enforcement. Violating a covenant is not criminal, it's breach of contract. But what they did to you was criminal behavior, and that's the problem with this new law. It allows the violators to anonymously cause damage to your property, and threaten you with bodily harm, and harass you and your wife. That is all criminal conduct.

You don't deserve the treatment you received, and it is another example of how the legislators made a big mistake by enacting this law and allowed the bad guys to win.

Have the e-mail and complaints come to you and your board first them foward to the PM That way everything goes to you and you have time to discuss amoung the board before the PM even makes any decision. It is also a way of keeping track of your disbursements for budget reasons.

Roger:
I have searched your posts as you suggested on R&R on Delinquent Assessments.
These are very enlightening; however, I don't think I have found the answer I'm seeking re the Colorado process.

Harold referenced that one cannot collect on past-due fees UNLESS a lien is brought against the violator, and your response to that was...in Colorado they can. Are you saying, then, that in Colorado one can actually COLLECT THE MONEY OWED without filing a lien? This is how I'm interpreting your statement.

Will you kindly explain then how the money is ACTUALLY collected from the violator in Colorado without a lien being filed. Thanks.

Harold, it's been my experience that it does discourage people from reporting violations. We have two board members who are on the compliance committee, and they flat refuse to put their name on any report, so they won't do any inspections.

I get calls and emails from people with complaints, because I have my contact information on every newsletter. If the complaint is about a violation that the master association handles, I'll tell them to call the master, and inform them that they have a form that must be filled out and signed. As soon as I tell them that they must sign and their name will go on the letter, they back off.

If it's one that our association handles, I'll tell them that their name has to go on our letter. So far everyone has refused to have their name used, so I have to tell them that if they won't use their name, then we cannot take action unless the manager or myself see it when we inspect. The manager only inspects once a week, and we would have to pay $50 per hour for extra inspections. I cannot run out and and inspect every time someone calls me. I have to set an inspection schedule that fits in with my available time. Not one person has been willing to have their name on a report.

The law doesn't discourage harmful retalliation, because while you probably know who did it, there is no proof, and without proof there is nothing the law can do. I'm sure I know who cut my sprinkler pipe, but I have no proof. The person who is retalliating by snubbing us has not gone far enough to break the law, but the psychological damage is there.

I have not gotten a legal opinion on garnishment and hope we never get to that point, but when you have a court judgment, the court has ordered the payment of that money, and because they owe the association money, the association is a creditor, and there are various ways to collect on that judgment. I believe garnishment, and sheriff cash register collection are on that list. But again I don't have a legal opinion.

We believe that if a person pushes us to the point where he's getting a $25 per day fine, that he will decide to comply. If he doesn't come into compliance, we will begin legal action and at that time we'll get the attorney to walk us through the entire process from filing to collection.

In the meantime, we really don't want the fine money. If a person who gets a fine letter tells us they will comply, then we will reverse the invoice the first time. If they repeat after that, we will go to the next fine level and it won't be reversed.

This is sort of a work in progress for us.