Servicemembers Civil Relief Act (SCRA) & HOAs

Started by BillK15 • 5 replies • 4500 views

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BillK15 (Washington)
Posts: 14

Posted:

Let me preface by stating I'm a 20-year veteran of the active duty military, and have been on multiple deployments, so I personally understand the sacrifice our military women and men endure. With that covered... I am an HOA Board Member who has recently received an appeal from a Soldier currently serving in Korea. He asked for his accrued fines to be totally waived. He claims he wasn't aware what his soon-to-be ex-wife was up to, and violations piled up. We denied his appeal, because as a Lot Owner in the HOA, he is responsible for following the CC&Rs. He appealed again, saying he was covered under the Servicemembers Civil Relief Act (SCRA) and that he could have the fines stayed for 90 days. We didn't agree with that, and that wasn't his initial stance. His initial stance was he wanted his fines totally wiped out. However we stated we would stop accruals of interest, and informed him he can enter a payment plan beginning in June. He again did not like our answer.

The way I interpret the SCRA, the service member can have court actions stayed (ie. foreclosure). The fines are not a result of a court proceeding. We have no intention of placing a lien or even initiating foreclosure proceedings. He said he was going to get advice from his installation JAG office and get back to us. Haven't heard anything. I guess my question is if someone out there has a similar experience. Is it just me, or do you believe that if we waive his fines, we risk setting a precedent for any service member to not care about the CC&Rs because they believe the SCRA will allow them to do whatever they want without regard the established CC&Rs?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

today, service is voluntary

these laws were passed when service was compulsory

now, to answer your ? :

Ask the corporate attorney for guidance.

imo: voluntary service does NOT negate any contractual obligations, merely 'defers' payment / compliance

LarryB13 (Arizona)
Posts: 4,099

Posted:

The text of the SCRA may be found at:

http://www.justice.gov/crt/spec_topics/military/scratext.pdf

TimB4 (Tennessee)
Posts: 21,062

Posted:

Bill,

First and foremost, thank you for your service. Being retired military myself, I also understand the issues facing deployed members.

My opinion is that the Associations goal is to collect the assessments so when there are circumstances that occur be willing to waive late charges. You might consider waiving 1/2 the charges.

As for the SCRA, JohnB is incorrect. The original Soldiers, Sailors Civil Relief Act (SSCRA) was drawn up when the draft occurred. However, the SCRA was recently adopted with no draft in place. John was somewhat correct that under the SSCRA, contracts entered into once on active duty were not applicable to portions of the SSCRA. However, the SCRA is a different piece of legislation.

Using the link to the act provided by Larry, the issue about fines are covered under § 523 on page 14. The argument would likely come down to " the ability of the servicemember to perform the obligation was materially affected by such military service" in concerning the penalties. Since allotments from military pay can be authorized (and might I add be done very easily using the dfas mypay system), a good argument can be made that the service member had the ability.

The question is, does the Association really want to go through that argument? As I said earlier, in my opinion the goal is to collect the Assessment owed and, if necessary, any actual charges associated with collecting the assessment. I'd suggest making a deal of cutting all or 1/2 the charges if the member pays what is owed and, perhaps, establish an allotment for future payments. Unless you can reach a compromise, the service member has invoked his rights under the act and the Association will need to comply with that law now that it is invoked.

Being retired military, you and I also have access to JAG offices on military bases. I suspect that if you approached an office to ask for clarification on the SCRA so you don't cause undo stress for the service member in this situation, the attorney would be willing to talk to you. You could then bring that information back to your Board.

I will offer these articles about the affect of SCRA:

http://www.hindmansanchez.com/resources/article/servicemembers-civil-relief-act-and-its-implications-homeowner-associations

http://www.moaa.org/uploadedFiles/MOAA_Main/Main_Menu/Access_Member_Benefits/Professionalism/Symposia/ABA%20SCRA.pdf Military officers Association FAQ style write up about the act.

Servicemembers Civil Relief Act and Its Implications for Homeowner Associations From a legal newsletter

Questions & Answers for Reservists, Guardsmen and Other Military Personnel From HUD

A JUDGE’S GUIDE TO THE SERVICEMEMBERS CIVIL RELIEF ACT written by a JAG attorney

THE SERVICEMEMBERS CIVIL RELIEF ACT by the US Coast Guard

perhaps it will help.

BanksS
Posts: 403

Posted:

If the assessments are paid why worry about the fines. I believe HOA fining to be a subjective practice anyway. I say waive the fines for the service member. I'm not saying waiving late fees for unpaid or late assessments but the fines only.

So what if it sets a precedent. What's the impact on the HOA for not collecting fines from service members? Give em all a break.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By BanksS on 03/11/2014 3:31 PM

I'm not saying waiving late fees for unpaid or late assessments but the fines only.

I'm of the impression that the OP's use of fines are the late charges/fees for unpaid assessments.

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