8+ years out of compliance

I am posting this for my parents who aren't quite as computer savvy as myself. They're in their 70's, they live several states away from me, and this issue keeps coming up in our conversations regarding how to handle some personnel changes in their HOA.

For the record, I myself have never lived in an HOA community so I'm not sure how rules and regulations are enforced.

Where they live is kind of a place for retirees, like 60yo and older. Four condos to one large building. Everyone has 2 car garages and every condo is one floor. Pretty nice, not real upscale at all. My parents paid somewhere in high 100,000's, low 200,000's in 2005.

The facts are these: since about day one back in 2005, my parents have been out of code but nobody ever said anything. Some plants on their patio weren't within code, an extra birdfeeder, and the current issue: their blinds. Some of these violations were mistakes and others, well, let's just say my parents were pushing the boundaries a bit. But, like I said, not once in the first 8 years did anybody say anything. And in those 8 years every single one of the units got sold, all are still populated, and the values have gone up, despite the economy and despite many other people being out of code for the very same reasons as my parents.

About 6 months ago, as I understand it, there was a little bit of a regime change and suddenly the HOA started handing out fines to everyone. $25 here, $50 there. And my parents received several. Well, as much as it killed my mom, she disposed of some of her plants--my dad didn't mind that at all.

But, the stickler is the blinds. I have not read their agreement or anything like that. But, I'm going to take for granted that somewhere in it there is something about blinds having to be a certain color--probably white. Well, my parents have had "champagne" blinds that they bought in their place since day one. Once again, in 8 years nobody said a thing. Every unit got sold and everybody's values went up.

They received a fine for the blinds. I believe they'll keep getting a daily fine until they're changed. If they don't pay it, I suppose the HOA will block the sale of the condo somewhere down the road until what the fine ultimately adds up to is paid. And it's going to cost $2300 to get the blinds into code.

My question is this: Since the rules as currently constructed don't seem to reflect the real world since many people have been out of code but still the condos are getting sold and populated, could my parents refuse to pay or even change their blinds because the rules themselves are wrong as evidenced by the last 8 years of them being ignored and the complex still doing great business? Furthermore, could my parents take the HOA to small claims court using that as proof and wipe out all of the penalties they may receive?

Thanks.

Michael, you say they are getting fined but have they gone to a hearing on it yet? (emphasis added)

718.303 Obligations of owners and occupants; remedies.—

(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing. However, the fine may not exceed $100 per violation, or $1,000 in the aggregate.
(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. This paragraph does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.
(b) A fine or suspension may not be imposed unless the association first provides at least 14 days’ written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. If the committee does not agree, the fine or suspension may not be imposed.

Michael,

State laws vary. Without knowing the State, we can really only offer generalized comments.
Can you provide us with what State your parents live in? This may provide you with better advice.


Well, the simple answer is that they should bring the violations into compliance.


There are some blinds available that have two colors, one shows on the outside and one shows on the inside.


I'm not an attorney and I do not work in the legal profession. State laws vary. Typically, small claims court is not used for such issues.

I would have a problem , if, after 8 years, the association, through its Board of Directors and its management company started enforcement either the CCRs or the Rules in this fashion.

As I posted elsewhere. communication goes a long ways in resolving issues before they happen. Communicate to the owner that for the past whatever years there had been a lack of enforcement and it has been brought to the attention of some very concern homeowners that something should be done. Give people the courtesy of getting their house in order, so to speak, before laying down a hammer.

If this happened to me, and in the manner in which it was described, I might think about bringing action against the Association, and Small Claims Court would be a perfect venue.

BTW, revenue for fines generally stay with the HOA. Late fees generally would go to the management company. Revenue from the fines should go into a coffer in the effect someone does not see things your way. Just think, management company gets the revenue from the fines, owner sues the HOA, HOA has to use their funds to defend itself. I need to change my contract. I've been missing an opportunity, that and the Chanel handbags.

Richard,

You are so right about the communication. I find your posts to make a lot of sense.

I am just curious about the homeowner bringing a small claims case against the HOA. What would the homeowner be suing for? The homeowner would have to prove they were damaged in some way. They would have to prove some monetary damages for small claims. That is my understanding anyway. If they wanted to bring an action against an HOA to stop something, say stop enforcing the Covenant then wouldn't it be filing an injunction instead? This would be a different court in Iowa. Injunctions are filed in district court. In the reverse, if the HOA were to bring a small claims action against the homeowner for not paying the accumulated fine, then the homeowner could defend the suit as not enforceable because of no enforcement for an 8 year time period.

I am not a lawyer but that is my opinion anyway. This is why I dislike some aspects of the HOA concept. Please, $2300 fine for having the wrong color of blinds and that hasn't been enforced for 8 years. That's nonsense and very petty.

Our Covenants read:

The side of all window treatments which can be seen at anytime from the outside of the structure must be architectural off-white or neutral.

Isn't champagne a beige color? Isn't that about as neutral as you can get?

Depending on the state, if may or may not be enforceable after eight years.

Here's how it happened though I would bet. Homeowner A put up a blind that didn't conform and when the Board called them on it, their response was: "Well, Micheal's parent's blinds aren't in compliance, why haven't you fined them?"

They also have the option if enough of their neighbors agree to amend the Covenant that requires "white".

Richard we don't know what state the parents live in. I never said it wouldn't need to be voted on, hence the support of your neighbors, meaning if enough agree, then it can be amended. Sorry if I wasn't clear. Colorado is the only state that I know of that has a time limit on enforcing violations. Most CC&R's have that darn pesky Waiver Clause in them, you know the one, it goes something like this: No covenants, restrictions, conditions, obligations or provisions contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

So even if previous Board's gave them a pass, it doesn't mean this one cannot enforce.

Richard.

What Glen says is the way it is.

OK. Perhaps the previous owner had permission or perhaps that they were also out of compliance.

The fact that your parents replaced the blinds without reading the rules/regs and/or the other governing documents is on your parents (as it's likely that they needed to ask permission prior to replacing the existing blinds). I agree that it shouldn't have taken so long for the Association to identify the violation and it's possible that they went about the initial enforcements the wrong way. However, your parents are also to blame for failing to read the rules/governing documents prior to installation of the blinds in the first place.

You may simply want to advise your parents to contact the board and ask that the fines be waived. Have them explain that they were unaware that any issue existed until it was brought to their attention and that they have a contract to replace the blinds.

Do they have a fining schedule And does everyone have a copy of it? that is the question here. A HOA has the right to fine but needs to have a dfinition in place for what. Plus fines can not be the basis of liens. Which depends on your state and the creative fincances they allow to make it look like unpaid dues.

Find out about the fine schedule. Good intentions can go wrong in uneducated minds...

The fine schedule is $10/day. And it's been at least a few weeks since the first notice went out. So, conceivably, if my parents let it go for a year they could have a $3650 fine on their hands--unless there's some cap on it which I don't know about. I've told my dad to read his agreement as best he can given that I'm sure it's all lawyer-speak. I am going to be at their place in a couple weeks and will probably read the relevant parts of it myself.

Ya know, it's funny. My brother lives in a middle class non-HOA community here in the Tampa area and all the neighbors get along. Nice houses of different colors, cars out on the street, basketball hoops in the driveways, dogs running up and down the sidewalks, everyone in the 50's and 60's, engineers-teachers-computer programmers-government workers, houses bought and sold all the time, and it's one big happy family. My parents live in an HOA controlled community, everybody's retired, and nobody's friends with each other. I wonder if there's a correlation. Just thinking off the top of my head.

Thanks again for all the opinions.

Michael,

This is not legal advice, I am not a lawyer.

However, you may want to ask your parents to consult a lawyer. There is a thing called the "Doctrine of Laches" which basically says that if the HOA didn't do anything in the eight years prior, they may very well NOT have a leg to stand on in enforcing this issue now.

Most HOA's for ACC things require approval of the finished work via inspection and sign-off. Don't know if this is true for anyone else's HOA but mine here in Calif operates that way.

Anyway, if they (the HoA) went eight years without complaining about the issue, then that may amount to their Tacit approval.

A lawyer can walk you (your parents) through this and a legal consult and letter from a lawyer to the HOA should cost a lot less than $2300.00.

For the HOA to be coming after them after eight years of the HOA accepting the situation is a tad bit unreasonable.

We have had a few people here in my HOA use this strategy quite successfully.

Usually, if they were the first owners of their unit, they would have had to comply with Developer controlled CC&R's and rules. Often times these include landscaping plans for the first owners and window coverings (blinds etc). They would have had to get their approved. After submitting their plans to the ACC (developer controlled or Owner controlled).

The Doctrine of Laches might apply to this situation if that is an accepted legal principal in Pennsylvania. Best thing I can say is for them to consult a lawyer on this issue.

Of course, like others have said, talking it out and making sure they have a hearing to appeal the fines. They should also read and make sure they are familiar with their governing documents as that is always the place to start in any HOA dispute.

You will need a really good lawyer to argue that one. No guarantee of success. Since the price of new blinds is significantly lower than a lawyer, I'd just replace the blinds.

My suggestion would be to explain your situation to the HOA and when you visit help change the blinds. The figure your parents are providing seems very high and if this is what is keeping them from coming into compliance they may wind up costing themselves more. I think fighting this rule may not be worth the time and money. While I don't see the big deal whether a blind is champagne or white, apparently the community your parents moved into does and there doesn't appear to be much wiggle room.

If your parents still want to push the issue then they should pursue it after white blinds are up to prevent mounting charges. When my HOA tried enforcing some rules my family disagreed with we consulted an attorney. To prevent rash decisions because of the timeframe involved we paid the disputed assessment under duress making the intentions behind our payment know and only then did we continue to avoid potential damages.

We live in Florida and our covenants should have been renewed in 2003. The POA submitted revitalization
documents to the DEO and were denied for 4 reasons. The cost was $30,000. They are now in the process of
once again resubmitting paperwork with all necessary corrections. They say all covenants are still in effect.
I do not believe this to be true.It is extremely difficult to have anyone verify this fact either way,
including lawyers.

There reaches a point in time where if an HOA has not followed their own CCR's for many, many, many (OH thats right was it eight (8) YEARS) that any court would potentially tell the HOA too bad. In my state if an owner adds something as permanent construction such as an addition, shed, fence, gate, windows, etc. and the HOA does not file a lawsuit within one year of violation ... the owner gets what they installed.