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HOA going on private property to correct violation

Started by DonB8 • 14 replies • 2059 views

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DonB8 (California)
Posts: 12
Posted:
Hello all of you valuable resource people,
we have a home owner who continues to not cooperate with notices to bring his landscape up to community standards. He quit watering his yard sometime back, which is allowable due to the current drought, but he is still responsible to maintain his property, i.e., keep the weeds controlled, etc.
He has applied for the "Cash for Grass" through our local water company, that pays residents so much per sq ft to remove their grass in an effort to conserve water, and replace with xeriscape .
The HOA allows 90 days to complete a project, the water company allows six months. They are well past the 90 day time period, and very close to the six months the water company allows, after which time they will lose out on the grant money.
We granted them an extension if they would eliminate the weeds until the grass was removed. They didn't respond to our extension letter, nor did they make any effort to clear the weeds, now two weeks past the deadline.
We are proposing sending them a registered letter telling them if the problem isn't resolved by a certain date, we will hire a landscaper to bring the property into compliance and send them the invoice to pay. If they refuse to pay, the HOA pays and sues for reimbursement.
Now for the question; Where does the BOD stand legally on hiring someone to go on to private property to do maintenance work?
I'd love to hear the answer or any other comments how how we might handle this stubborn homeowner.
Thank you in advance,
Gary
NancyG3 (North Carolina)
Posts: 342
Posted:
Don - Check your Declarations under exterior maintenance it should tell you exactly how to handle. Also check the Cali Planned Comm Act it may have more info for you. Not sure how Cali declarations read but in NC after proper notice and nothing done the Assn can enter property, do necessary work, all of which shall not be deemed a trespass. Be sure to quote the section of the declaration in your letter. Maybe someone from Cali can give you more info than I can. Hope this helped.

Nancy
NancyG3 (North Carolina)
Posts: 342
Posted:
Don - Also, for the legality you may want to check with an attorney. I'm not an attorney and don't know Cali laws.
NancyG3 (North Carolina)
Posts: 342
Posted:
Don - Also, for the legality you may want to check with an attorney. I'm not an attorney and don't know Cali laws.
RichardP13 (California)
Posts: 3,868
Posted:
In today's environment, good luck.

I would contact your legal counsel.
RogerB (Colorado)
Posts: 5,067
Posted:
DonB8, Going onto an owners property without their permission or else a Court order would be trespassing. I would recommend not going onto this property to remove weeds. I presume the owner received written ACC approval before starting modification of their landscaping. That approval should always give an estimated time of completion (you stated 90 days max). If your Covenants allow for fining and if your association has a published policy for fines then fining an effective means of expediting compliance. Under those conditions I would send a Violation Notice to remove the weeds by a reasonable deadline or else the homeowner will be fined in accordance with the association's policies and procedures after first having the right to request a Hearing if they do not believe they are in violation of a restriction concerning their weeds.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By DonB8 on 08/05/2015 2:19 PM

Now for the question; Where does the BOD stand legally on hiring someone to go on to private property to do maintenance work?

Although our Association has all the right language in the CC&Rs to enter the property and correct violations, when we asked our attorney, we were advised that this should only be done if it's a life or death situation (gutter detached and hanging from the house, etc.). They also advised that even then, proper notifications need to be sent or those entering the property could still be dealing with trespassing charges.

Now for the answer: As this is a legal question, it needs to be directed to an attorney who will have access to all the communications between the Association and the member, have access to your governing documents and be knowledgeable on the applicable laws.
DouglasK1 (Florida)
Posts: 2,046
Posted:
Like Tim, our documents say we can do it, but I don't think we ever have. A letter threatening it is usually enough. I think the times we have considered it has been with empty homes in foreclosure. I'd be very wary of doing this on an occupied home, even if legal there are some real crackpots out there, and some of them are armed.
Escaped former treasurer and director of a self managed association.
KennethS2 (California)
Posts: 36
Posted:
In our California HOA violations that are not corrected within a reasonable time frame are called before the Board and are fined. Our documents allow fines. In the case of landscape it is $250 a month until they come into compliance. A lien can not be put on fines unless we win in Small Claims Court - we have won everyone. Most pay and come into compliance because we also remove their ability to use the common facilities until all is corrected.

Ken
AllisonD (Florida)
Posts: 449
Posted:
In my HOA we have the correct language and we have done this a few times. So far the correcting the violations cost about the same as the fine they would have gotten. We want the violation corrected and we are not going to get it done through fining them. I rather they spend their money on correcting the problem. I have never had to do this twice to the same homeowner.
CyrstalB (Maryland)
Posts: 457
Posted:
In a dispute that was filed with the County's HOA supervisory board, the board asked the County Attorney if the County would send someone onto the property to take down the structure, a shed, that was in direct CCR violation and the county attorney said the county would not hire someone nor pay their staff to go onto someone's property to it take down.

As a board member, I would never vote to take that route either. If you can't get your County or other local gov. to do it, why would you risk your life?

Sad but true, HOA's and their ability to control homeowners is fast disappearing, and some states have already passed laws that do not allow you to take unpaid fines and turn them into a lien.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
DonB

In SC if something has not been corrected (or work commenced on the correction) within 30 days of notification our HOA can have the work done and bill the owner. That said, our lawyer advised against doing it unless under armed guard and no one wants to do that.

About all you can do is go the legal route. Along the lines of if so and so is not corrected by a specific date, the HOA will commence legal action.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
We have the right to correct an issue and bill the owner. If the owner does not pay, then we can place a lien on them. However, that lien can't be the basis of foreclosure because it's not dues related.

We give the member 30 days to clean up the issue at their cost, if not then we will pay someone at our expense and bill you for it. We do NOT promise to find the cheapest contractor. So we strongly emphasize that our bill could be higher than if they do it themselves. They will have no choice in contractors etc... We then give them 30 days to up to 3 months to pay the bill. If not, then we charge interest, legal fees for filing the lien, and any additional expenses related.

I found this approach works much better and stronger than issuing fines. Fines you have to define them and put them in a fine schedule to enforce. Fines can't be used for the basis of liens or foreclosures because they are NOT dues. Approaching the issue as a repair does allow one to turn this into a lien as it is considered "damages" to the HOA. That is also something one can sue for if they do not go the lien route. However, with a lien one can NOT sell their home till it is paid off and it accumulates over time. A lawsuit a person can sell/move and never pay the lawsuit. One has to take action to pursue it and it does not accumulate over time.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By DonB8 on 08/05/2015 2:19 PM
Hello all of you valuable resource people,
we have a home owner who continues to not cooperate with notices to bring his landscape up to community standards. He quit watering his yard sometime back, which is allowable due to the current drought, but he is still responsible to maintain his property, i.e., keep the weeds controlled, etc.
He has applied for the "Cash for Grass" through our local water company, that pays residents so much per sq ft to remove their grass in an effort to conserve water, and replace with xeriscape .
The HOA allows 90 days to complete a project, the water company allows six months. They are well past the 90 day time period, and very close to the six months the water company allows, after which time they will lose out on the grant money.
We granted them an extension if they would eliminate the weeds until the grass was removed. They didn't respond to our extension letter, nor did they make any effort to clear the weeds, now two weeks past the deadline.
We are proposing sending them a registered letter telling them if the problem isn't resolved by a certain date, we will hire a landscaper to bring the property into compliance and send them the invoice to pay. If they refuse to pay, the HOA pays and sues for reimbursement.
Now for the question; Where does the BOD stand legally on hiring someone to go on to private property to do maintenance work?
I'd love to hear the answer or any other comments how how we might handle this stubborn homeowner.
Thank you in advance,
Gary

If you plan on doing the landscape, as it is a form or fine or punishment, you need to follow the due process clause set up in California Civil Code.
NigelB (Texas)
Posts: 254
Posted:
Quote:
Posted By DonB8 on 08/05/2015 2:19 PM
Hello all of you valuable resource people,
we have a home owner who continues to not cooperate with notices to bring his landscape up to community standards. He quit watering his yard sometime back, which is allowable due to the current drought, but he is still responsible to maintain his property, i.e., keep the weeds controlled, etc.
He has applied for the "Cash for Grass" through our local water company, that pays residents so much per sq ft to remove their grass in an effort to conserve water, and replace with xeriscape .
The HOA allows 90 days to complete a project, the water company allows six months. They are well past the 90 day time period, and very close to the six months the water company allows, after which time they will lose out on the grant money.
We granted them an extension if they would eliminate the weeds until the grass was removed. They didn't respond to our extension letter, nor did they make any effort to clear the weeds, now two weeks past the deadline.
We are proposing sending them a registered letter telling them if the problem isn't resolved by a certain date, we will hire a landscaper to bring the property into compliance and send them the invoice to pay. If they refuse to pay, the HOA pays and sues for reimbursement.
Now for the question; Where does the BOD stand legally on hiring someone to go on to private property to do maintenance work?
I'd love to hear the answer or any other comments how how we might handle this stubborn homeowner.
Thank you in advance,
Gary

While your governing documents might very well give the association the right to enter property to correct deficiencies following notification and non-compliance, it probably is not the prudent thing to do.

Worst case scenario - the HOA hires a contractor to correct the deficiency, the homeowner objects to what they perceive to be a trespass and defends their property forcibly. The contractor is injured and files a lawsuit for damage against the HOA as does the homeowner for trespass.

The appropriate remedy is a letter requesting they come into conformance with HOA policy by a certain date or the HOA will have their attorney file a lawsuit to compel compliance and all charges will be billed to the homeowners account.

Probably not the answer you really wanted

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