Enforcing violations to regulations

GloriaR:
What regulations are the residents violating?

- Are they insisting on violating the LEGAL COVENANT DOCUMENTS which 'came with' the purchase of your unit? What percentage of residents does your covenant specify is required for residents to change the covenant?

- or, are the residents violating the Rules & Regulations instituted by the Board? These are not required to be officially recorded, can be added to or changed at any time and do not require resident approval.

There are covenant regulations and there are 'rules'. If your legal covenant documents do not allow for fines, how can a Board expect residents to adhere to anything? Some would say ...but its just the right thing to do...to follow the guidelines/rules; but we all know people who love to rebel.

Does your community charge a manditory assessment fee to cover certain maintenance? or is the assessment voluntary? This is an important issue to address.

We turn over the tough ones to an attorney who then makes a request for compliance. If the offender fails after the attorney makes the request, then he files a complaint requesting the court to demand compliance. At that point, if compliance is still not made then they are found in contempt of court.

We don't have an option to fine either. But we do have wording in our documents that states if we have to resort to legal action to enforce regulations, the offender is to pay court costs as well.

Good luck.

There is an option here. It's not going to be a favorite one but it's an option. The HOA can PAY to have the house repainted to the approved colors and send the bill to the homeowner. If the homeowner refuses to pay the bill, the HOA can then LIEN the homeowner for the money. However, it may be sufficient enough to just threaten to do this than go through the whole process. The homeowner may comply without getting this "forceful". This option should be in your CC&R's.

This is the ONLY other area where a HOA can place a lien on a homeowner. The first is non-payment of dues/assessments. If the HOA board votes to repaint the house, they are entitled to recoup their costs in doing so. This goes for other structures as well. If someone builds an unapproved fence or the fence is in bad/dangerous condition, the HOA can remove it at the owner's cost.

I've always used this as an example when dealing with HOA's. What if a resident puts up an "outhouse" in the front yard? What can the HOA do? The members have to complain to the board about it. The board then votes and agrees it's a violation. The board then gives notice (maybe through their MC) to the owner. The letter informs them they have a violation and need to correct it within 10 days. If they do NOT remove the violation, the HOA will pay (at whatever bid amount) someone to remove it, and charge the owner for it's removal. If the owner refuses to pay the bill, they will be liened the costs.

In this case the lien is different than a fine. Fines can't be used for liens/foreclosures. It's the fact the HOA suffered monetary "damages" that a lien can be placed in this scenerio. Avoid small claims court. The owner can sell their property with a court judgement. A lien doesn't allow the owner to sell and move.

Melissa, it is a bad idea to enter onto a homeowner's property and do repairs unless either the owner approves or the HOA first gets a court order. Even with a court order I would have a sherrif's duputy escort the contractor and me onto the property.

I dunno, Harold, our CC&Rs allow us to enter the property in some instances without permission:

(b) From and after the date construction of a single family residence on a lot is started, it shall be the duty of each lot owner to keep the grass on the lot properly cut, to keep the lot free from weeds and trash, and to keep it otherwise neat and attractive in appearance. Should any owner fail to do so, then Developer may take such action as it deems appropriate, including mowing in order to make the lot neat and attractive, and the owner shall, immediately upon demand, reimburse Developer or other performing party for all expense incurred in so doing, together with allowable statutory interest, and Developer shall have a lien on that lot and the improvements thereon to secure the repayment of such amounts. Such lien shall be subordinate to any first mortgage thereon.

Plus, when we have won a judgment against an illegal fence, we were allowed by court order to enter the property to remove if resident didn't comply by a certain date. On another case, we were able to enter the premises with a sheriff to remove dogs.

The thing is, your CC&Rs don't have teeth unless you use the resources available to you to enforce them. One of those resources is a court order. The way to get a court order is to take the resident to court with a complaint, and NOT through Small Claims court.

We have been fortunate in that in 10 years we've only had to take 2 cases to actual trial. We won on both. In other words, the judge found that our CC&Rs were a contract with the resident and when they were violated he was ordered to uphold the contract and bring his property into compliance or be found in contempt of court, at which time the court would assess appropriate fine, NOT for the violation itself, but for contempt of court, daily fine if need be.

We have had to draw up about 6 complaints over various issues, commercial vehicle parking, unapproved construction, on-street parking, illegal fence, above-ground swimming pool, etc.

Our attorney would draft the complaint, mail it to the resident with a cover letter explaining that this is the complaint that will be filed in XXX days if resident does not comply or respond to the attorney with a timeline / plan for compliance.

All six threatened to sue in return. We said, Okay, whatever you feel you need to do. They usually cite, through their attorney, that they will claim selective enforcement. In which case our attorney responds back with a court date and comments to the effect that we will provide all records of consistent enforcement and let's take this to trial. In all but those 2 cases I mentioned, the resident backed down and voluntarily complied.

Now that the residents know that we will defend the documents, we have rarely had to get past two warning letters.

Because there is another section of the documents that transfers any actions by DEVELOPER to whomever he assigns to, such as the residents association when it's turned over. Most CC&Rs that have DEVELOPER in them have that clause as well.

I'm not trying to "prove" anything. You are the one who brought up the "at will" modifiers. I didn't think the original poster was talking about going onto properties at will, only to enforce certain restrictions. I was simply indicating where there are SOME CC&Rs that provide for that entrance.

The instances I brought up WERE under court orders, but I also indicated where the CC&Rs show that we can enter properties on occasions to enforce some things, for example, the mowing and lawn maintenance.

Gloria, do a search on the net for Florida Statute 720. It offers a mediation alternative that any Association or Homeowner can use to resolve disputes. Most of the time it is used against Associations but it is very clear that it works both ways. I think it is section 305 that you need.

I agree, Melissa, I didn't say I was an advocate of going onto the property, just that the option does exist.

We could have gone on in the fence instance, prior to a lawsuit, but opted to have the court order. And yes, a court order does protect you and the vendor, especially if you have a sheriff with you.

But that's an extreme situation.

When it comes to grass mowing etc, even though we CAN go on if we opt to, we generally don't. We go through the same process as all other violations.

The only exception to that is when the homeowner has the house for sale and is already moved out. In those cases, if the lawn is getting out of control, we contact the realtor on the sign and notify him of the maintenance issue. If he fixes it, we move on. If he doesn't we ask if we can send our service on and bill him. They usually agree at that point. If they don't then we let them know that we will be mowing and will bill and file lien if not paid. That usually prompts them to take care of it because they want the title clear for the sale.

As a matter of practicality, we don't enter the property except in the extreme circumstance of a court order or the above lawn scenario.

what if? And what if he had a valuable Ming vase that he kept on a shelf on the fence??? And we dropped it, and then we yanked the ladder out of the way and put it through his plateglass window, and the shattered glass fell on his purebred, three-legged Siamese cat and the cat cut his paw and jumped up on the grand piano with the ivory keys and got blood all over the keys, and then the cat knocked over the OTHER Ming vase full of flowers and water on top of his big screen TV, which shorted it out and caused a fire in the electrical system . . .

I suppose we could just freeze ourselves into doing nothing because of all the "what if"s we can dream up. One would never leave the house.

If he's got a BMW then we better not scratch it I would imagine. Guess we'll just have to be careful and rely on the sheriff as an eye-witness to whatever dangers lurk from our floundering about.

Seriously, if he's ticked enough he could "claim" anything, I suppose, but that's no reason for us not to enforce.

You asked me earlier what I was trying to "prove," so I guess I'll ask you the same question in return.

I'll be point blank about it and let you know that I feel as though you are being hostile towards me simply because I offered a different, yet viable, perspective.

I'm not trying to be a smart alec, but I really do sense hostility in your replies to me. If I am wrong, then I apologize.

I will say again, as a rule, we don't enter homeowners' properties without either a court order (as we had in just TWO instances in over 10 years) OR when there is NO resident living in the home anymore and we have obtained permission from either the realtor or the bank on behalf of the resident.

I simply provided the information that OUR deed restrictions allow for us to do so. Doesn't mean we necessarily have to and have ONLY done it on the instances I mentioned.

I'm not picking on you, Harold. Honestly, I'm not. and I said if I was wrong then I apologize, but you singled me out by name in your response earlier, the others did not, so I sensed some tension there.

I would hardly refer to using the full resources available per our deed restrictions, including lawsuits when necessary, as a reckless spending of money.

In 10 years we have only had to actually file 2 lawsuits. We won both. The residents who lost had to pay court costs and attorney's fees, AND the costs incurred for us to bring the properties into compliance. Neither lawsuit was reckless and we certainly don't advocate "reckless" lawsuits either.

But when the CC&Rs allow for the option, and compliance cannot be gained through any other recourse, it's a very suitable and viable option.

Lawsuits, at least for us, are a last resort.

Another perfectly viable and excellent course to pursue. Thanks for mentioning it, Kevin.