Waiver for Past Violations?

GreggK2 (Kansas)
Posts: 86

Posted:

As some of you may already know, myself and a handful of other home owners "took over" the HOA board. The prior board, which consisted of 2 people, were irresponsible with regard to almost every aspect of running the HOA.

We have met with an attorney and discovered that there are a some violations that went unchecked for years. Now, since we do not want to come across as some police force, and the violations are minor in some cases, I was wondering if this paragraph of the CC&R's would allow us to waive the past violations. For example, our CC&R's prohibit sheds. We have 3 homes that went ahead and built them in their enclosed backyards. They look fine but if someone comes to us and asks permission for a shed, we would have to say no. Their argument would then be "Well the got to put a shed in" and that is where we run into problems. We do intend to put sheds on the ballot for our next meeting. But could you please read this paragraph and tell me if it allows us to waive the past violations:

No waiver of any violation shall be effective unless in writing and signed and delivered by the person or entity entitled to give such waiver, and no such waiver shall extend to or affect any other violation or situation, whether or not similar to the waived violation. No waiver by one person or entity shall affect any rights or remedies that any other person or entity may have; provided however, that a duly authorized, executed and delivered waiver by the Homes Association respecting a specific violation shall constitute and be deemed as a waiver of such violation by all other persons and entities (other than the Developer).

If it does allows us to waive them, I know there will be some very happy people out there and we would be able to put the mistakes of non-enforcement from previous boards behind us.

Gregg

BobD4 (up north)
Posts: 1,002

Posted:

If you have seen an attorney, why ask here ?

GreggK2 (Kansas)
Posts: 86

Posted:

So people like you could post smug and wasteful answers? Well, one answer might be that attorney's cost money and I felt this was a simple enough question that could be responded to by serious people. Also, our attorney doesn't work at 11:40PM on a Friday night so I was hoping to get an answer sooner than Monday. Go back to playing on your XBox or whatever it was you were doing before you posted such a ridiculous response.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Gregg,

That wording is confusing. Additionally, I don't see where it provides the Board or any other entity the authority to waive a covenant.

Why not simply remove the rule for sheds and make rules on the size, style and material for sheds to be approved. Those who already have them can then keep them and when the shed is replaced you specify that it must comply with rules/regs in effect at the time.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By GreggK2 on 07/17/2015 7:49 PM
As some of you may already know, myself and a handful of other home owners "took over" the HOA board. The prior board, which consisted of 2 people, were irresponsible with regard to almost every aspect of running the HOA.

We have met with an attorney and discovered that there are a some violations that went unchecked for years. Now, since we do not want to come across as some police force, and the violations are minor in some cases, I was wondering if this paragraph of the CC&R's would allow us to waive the past violations. For example, our CC&R's prohibit sheds. We have 3 homes that went ahead and built them in their enclosed backyards. They look fine but if someone comes to us and asks permission for a shed, we would have to say no. Their argument would then be "Well the got to put a shed in" and that is where we run into problems. We do intend to put sheds on the ballot for our next meeting. But could you please read this paragraph and tell me if it allows us to waive the past violations:

No waiver of any violation shall be effective unless in writing and signed and delivered by the person or entity entitled to give such waiver, and no such waiver shall extend to or affect any other violation or situation, whether or not similar to the waived violation. No waiver by one person or entity shall affect any rights or remedies that any other person or entity may have; provided however, that a duly authorized, executed and delivered waiver by the Homes Association respecting a specific violation shall constitute and be deemed as a waiver of such violation by all other persons and entities (other than the Developer).

If it does allows us to waive them, I know there will be some very happy people out there and we would be able to put the mistakes of non-enforcement from previous boards behind us.

Gregg

I do not think its a good idea to do waivers especially for sheds. If you are able to successfully amend your documents to allow sheds then everyone is covered. Why do you care about doing a waiver unless you think you will be moving forward with the same rule still in place?

BobD4 (up north)
Posts: 1,002

Posted:

GreggK2 (Kansas ) : "So people like you could post smug and wasteful answers ? . . . Go back to playing on your XBox or whatever it was you were doing before you posted such a ridiculous response."

Commenters generally read & think. Part of a credible answer is within the wording of your CCRs, plus what state law may provide about compliancing duty, plus how your courts may have treated such. Part is also within the familiar example sometimes trotted out when violators demand some right to equally violate. Good luck with using input.

AnnH5 (Florida)
Posts: 304

Posted:

I am not an attorney and of the mind that if you have a question about the interpretations of your CCRs you will be best served by an attorney.

As an owner, I would interpret the situation as such: If you give my next door neighbor a waiver for a shed and then I request the same waiver so that I can install a shed and your response is "no", you are now selectively enforcing the restriction on sheds.

Your best bet is to put an amendment to vote. However, it is does not pass you will still have the same problem on your plate. Can you also have the owners vote on whether one-time waivers should be granted for pre-existing sheds in the event that the amendment does not pass? If that passes, I would make sure that there is a time limit for those owners with sheds to submit their request for a waiver. In any instance, by putting these options up for consideration, you will be listening to the owners and putting some of the responsibility back on their shoulders instead of creating "a police force".

GreggK2 (Kansas)
Posts: 86

Posted:

It's our intention to put things, such as the sheds, to a vote at the annual meeting but that isn't until January. My question original question was regarding the paragraph about waivers. I wanted to know if I was interpreting it correctly, in that a waiver can be given to someone who has already violated the CC&R's and I don't think anyone has yet to say "Yes, that is what the paragraph means" or no and that we are reading it wrong. I mean, it's in the CC&R's for a reason and I am just trying to understand its meaning:

No waiver of any violation shall be effective unless in writing and signed and delivered by the person or entity entitled to give such waiver, and no such waiver shall extend to or affect any other violation or situation, whether or not similar to the waived violation. No waiver by one person or entity shall affect any rights or remedies that any other person or entity may have; provided however, that a duly authorized, executed and delivered waiver by the Homes Association respecting a specific violation shall constitute and be deemed as a waiver of such violation by all other persons and entities (other than the Developer).

LarryB13 (Arizona)
Posts: 4,099

Posted:

Gregg,

I think your interpretation is correct.

The waiver is more of a statement of forgiveness than a license. By granting the waiver, the association is stating that it will take no action against the violation. Also, in granting the waiver, no other owner may try to enforce the covenant against whatever the waiver was for.

One thing I always recommend whenever a waiver is granted or new construction is approved is that the property owner record the document so that 25 years from now there is no arguing over whether approval was granted or a violation waived.

GreggK2 (Kansas)
Posts: 86

Posted:

Quote:

Posted By LarryB13 on 07/18/2015 10:59 AM
Gregg,

I think your interpretation is correct.

The waiver is more of a statement of forgiveness than a license. By granting the waiver, the association is stating that it will take no action against the violation. Also, in granting the waiver, no other owner may try to enforce the covenant against whatever the waiver was for.

One thing I always recommend whenever a waiver is granted or new construction is approved is that the property owner record the document so that 25 years from now there is no arguing over whether approval was granted or a violation waived.

Thanks you for confirming that.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By GreggK2 on 07/18/2015 11:01 AM

Posted By LarryB13 on 07/18/2015 10:59 AM
Gregg,

I think your interpretation is correct.

The waiver is more of a statement of forgiveness than a license. By granting the waiver, the association is stating that it will take no action against the violation. Also, in granting the waiver, no other owner may try to enforce the covenant against whatever the waiver was for.

One thing I always recommend whenever a waiver is granted or new construction is approved is that the property owner record the document so that 25 years from now there is no arguing over whether approval was granted or a violation waived.

Thanks you for confirming that.

Disagree.
IMO, says that a prior board's inaction does not constitute a waiver. Waivers can only be made in writing, and if not in writing, waiver was not made. If there was a written waiver, it does not apply to a similar situation.

Sikubali jukumu. Read all posts at your own risk.

GreggK2 (Kansas)
Posts: 86

Posted:

I am not saying the previous board's inaction was a waiver. What we are saying is that previous boards failed to take against against 2-3 violators. Since we would rather put the issue to rest, we want to offer written waivers to those 2-3 people. Of course, we would want them to apply for the waiver before granting one.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Gregg

I agree with NPS is several ways. One is if a waiver can be granted at a later time.

The other is if you give waivers (or whatever) for the sheds, others are going to want and expect such as per what ANN said. I say acknowledge that there have been violations that past BOD's did not address. This lack of action was incorrect and will not continue. The present BOD will abide by and enforce all Covenants, Bylaws, Rules and Regulations as dictated by the Covenants.

Either go after the present sheds as they are violations or treat them with benign neglect. Do not forgive, nor waive, nor grandfather, etc. them as this prevents any further action. When pressed say the BOD is considering what action to take, if any, against past offenders.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JohnC46 on 07/18/2015 12:49 PM
Gregg

I agree with NPS is several ways. One is if a waiver can be granted at a later time.

The other is if you give waivers (or whatever) for the sheds, others are going to want and expect such as per what ANN said. I say acknowledge that there have been violations that past BOD's did not address. This lack of action was incorrect and will not continue. The present BOD will abide by and enforce all Covenants, Bylaws, Rules and Regulations as dictated by the Covenants.

Either go after the present sheds as they are violations or treat them with benign neglect. Do not forgive, nor waive, nor grandfather, etc. them as this prevents any further action. When pressed say the BOD is considering what action to take, if any, against past offenders.

John,

Read what I said above. It is forgiveness for a past violation and not a license to commit a new violation.

The waiver from Gregg's CC&R's presents a simple way of dealing with violations that occurred long ago and were allowed to go unchecked. Taking action years-after-the-fact creates a new set of legal challenges with an uncertain outcome.

Continuing to ignore the problem does not solve it. What's done is done and the waiver simply puts a stop to future debates over something from the long past. The previous boards failed to act and left the problem for Gregg's board. Deal with it and get it off the table because there is nothing that is going to happen in the future that will make these violations go away. How many more debates must future boards have on this same subject instead of addressing current problems? If the current board grants the waiver(s), the issue is resolved for all time. If they do nothing now someone else in the future will have to deal with this same problem again and again.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By LarryB13 on 07/18/2015 4:05 PM

Posted By JohnC46 on 07/18/2015 12:49 PM
Gregg

I agree with NPS is several ways. One is if a waiver can be granted at a later time.

The other is if you give waivers (or whatever) for the sheds, others are going to want and expect such as per what ANN said. I say acknowledge that there have been violations that past BOD's did not address. This lack of action was incorrect and will not continue. The present BOD will abide by and enforce all Covenants, Bylaws, Rules and Regulations as dictated by the Covenants.

Either go after the present sheds as they are violations or treat them with benign neglect. Do not forgive, nor waive, nor grandfather, etc. them as this prevents any further action. When pressed say the BOD is considering what action to take, if any, against past offenders.

John,

Read what I said above. It is forgiveness for a past violation and not a license to commit a new violation.

The waiver from Gregg's CC&R's presents a simple way of dealing with violations that occurred long ago and were allowed to go unchecked. Taking action years-after-the-fact creates a new set of legal challenges with an uncertain outcome.

Continuing to ignore the problem does not solve it. What's done is done and the waiver simply puts a stop to future debates over something from the long past. The previous boards failed to act and left the problem for Gregg's board. Deal with it and get it off the table because there is nothing that is going to happen in the future that will make these violations go away. How many more debates must future boards have on this same subject instead of addressing current problems? If the current board grants the waiver(s), the issue is resolved for all time. If they do nothing now someone else in the future will have to deal with this same problem again and again.

IMO, there hasn't been any waiver if nothing was put in writing. Since OP made no mention of a documented waiver, suggest you rewrite your comments Gregg without using the term waiver.

Sikubali jukumu. Read all posts at your own risk.

GreggK2 (Kansas)
Posts: 86

Posted:

Larry - the was one of the most intelligent and well-written responses I have received since being in this forum. Thank you!

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By GreggK2 on 07/19/2015 3:24 AM
Larry - the was one of the most intelligent and well-written responses I have received since being in this forum. Thank you!

You like Larry's response because he agrees with you but when your other residents realize you are using selective enforcement by denying their requests for sheds, you will understand that using a waiver for this situation is wrong.

GreggK2 (Kansas)
Posts: 86

Posted:

I like his response because he didn't make assumptions, as you just did, regarding selective enforcement. We never said we would deny requests for sheds. In fact, our attorney advised us not to deny them but rather table them until the HOA has the chance to vote on them. You know what happens when you assume?

GenoS (Florida)
Posts: 4,276

Posted:

I believe the correct term is, "postpone indefinitely", not "table". Got that from RONR last month

This is a complex issue. If you postpone an owner's shed request indefinitely and they go ahead and build one anyway sans approval, how would you enforce against that violation while letting the others go without inviting claims of selective enforcement?

Is a waiver a de facto "Grandfathering In" of existing violations that will be allowed to exist?

In reading our governing documents, the board is charged with the duty and responsibility to enforce the covenants and restrictions. One definition of "waiver" is the voluntary action of a party that removes that party's right in an agreement. Is giving up a right to something within the power of a board of directors? Our docs further state that the board's failure to enforce against a violation specifically does not constitute a waiver. I don't think, in my case, the board even has the authority to grant waivers for violations.

Most states allow enforcement of an HOA's covenants not only by the board, but by individual owners as well, against violations. Would a waiver from the board of directors be binding on an individual homeowner who wanted to pursue their own course of action against the violation? I think it would not.

Granting waivers is not something I would undertake lightly.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By GreggK2 on 07/19/2015 11:13 AM
I like his response because he didn't make assumptions, as you just did, regarding selective enforcement. We never said we would deny requests for sheds. In fact, our attorney advised us not to deny them but rather table them until the HOA has the chance to vote on them. You know what happens when you assume?

If the vote goes as you want it to, then you have no problems. If you issue the waivers and the vote does not go the way you want as I suspect you are worried about, then you will have the situation where you have approved, by way of a waiver, some sheds and will be either forced to deny future requests or issue waivers for future requests. Why not just wait for the vote if you are sure it will go your way? It seems like a backroom deal, what you are trying to do. It may not be, but it gives the appearance that you are favoring the shed people before any vote is taken. If the vote does not approve sheds, it will look like you made sure to take care of your friends. As a board member it is not your job to figure out how to allow people to disobey the rules. You can try to change the rules that you think should be changed and then everyone gets what they want.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As a board member it is not your job to figure out how to allow people to disobey the rules.

Well said.

ND (PA)
Posts: 792

Posted:

Why waste time and money doing anything if the plan is to try and hold a vote in January to amend your docs to allow sheds? In reality, January isn't too far away. Creating waivers, getting them signed, seeking legal advice will all take time and money that will probably extend over the next few months anyway.

Simply ignore the (non)issue for the next few months (as has been done for years already), then have a vote and see if you even need to be worrying about it after that. If owners don't vote to allow sheds, then you know that people don't want sheds, and you can send the few shed owners notices for violating the docs.

If the few shed owners wish to keep their sheds, then they need to go out and encourage everyone to vote to allow sheds. Perhaps you can inform them ahead of time that they should do this.