Owner won't pay April Fee because his driveway wasn't plowed last winter

Started by JosephH2 • 26 replies • 2001 views

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JosephH2 (Pennsylvania)
Posts: 57

Posted:

One of our owner's refuses to pay his April fee ($116) because his driveway wasn't plowed after a storm last winter.
It's true that it wasn't plowed due to a problem with our snow clearing contractor.

Since one of our HOA services is to plow driveways, it seems that he should get some kind of compensation but, at the same time, I don't know if we should allow an owner to not pay a fee.

Anyone have suggestions on how to handle this?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Easy... NO excuse for NOT paying dues is acceptable. Protesting isn't a reason to stop paying dues. You lose many of your rights when you dost protest...

Now if he is due a refund that is up for debate on how the contractor is paid. Does the HOA pay for the plowing out of their budget? If so, then the HOA needs to contact the plow contractor if felt job was not completed as contracted. If the owner pays the bill, then it's between them and the contractor.

No matter how you slice it, throwing a fit and not paying your dues just hurts you in the end.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Joseph,

I suspect that if you read your governing documents, the Board has zero authority to waive assessments.
They may waive late charges, fines, etc., but not assessments.

What should have happened is the members should have contacted the Board when the driveway wasn't plowed.
The Board should have contacted the contractor about the issue.
The contractor should have returned to plow the driveway.
That is how the issue is resolved.

Withholding payments of assessments is not the answer and the Board should not even entertain the issue.

RichardP13 (California)
Posts: 3,868

Posted:

I disagree.

Part of their assessments is to provide a specific service, that of plowing one's driveway. The OP, not sure if they are on the Board, acknowledged that the driveway wasn't plowed. I am assuming they had to do it themselves. What if the Board ignored the request, we don't know.

Simply figure the cost of the removal of snow for one home and credit their account. That could have been done in less time than to post the question.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

That makes no sense Richard... I don't use the pool so should I get a refund??? Just because you do not use an amenity or service not rendered does not mean one gets reduced dues. You don't even compensate someone for reduced/non-payment of dues. Seriously you don't get this???

The payment/dues you make to an HOA isn't just your single contribution where you pick and choose where it goes/what you benefit from. It's a POOL of money from ALL members to handle ALL the HOA's bills/responsibilities. A HOA is ONLY funded by it's members FOR it's members.

My dues of $50 dollars is put into a "Pot" of 107 other owners. That pot then is what the HOA uses as their operating budget. So if it cost the HOA $500 to pay someone to contractually remove snow and they miss a house, then that missed house doesn't get their 1/500th of a refund/reduction of dues. What should have happened is the HOA contact the contractor and ask what up?

There is no reason not to pay your dues. The other factor is when it's time to lien. Are you going to nickel and dime dues? Well we compensated them for 5 months but they stopped paying for 6... At what point do you lien as 11 months of dues were NOT collected...

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Melissa

Let me educate you a bit, as there is a big difference between an amenity and a service. You choose not to use the amenity, that is your choice. You didn't choose not to have the snow removed.

The homeowner should not have withheld his dues for April, BUT the HOA handled the situation poorly, unless they can clarify the events.

If the event happened in November, and the HOA knew about the issue, why are they coming here to find a solution in May?

If the snow plowing in November cost $1000.00 and there are 100 homes, the expense is $10.00 per home. Credit the damn home the $10.00 and short pay the invoice for the vendor $10.00. Issue handled, case closed.

Same scenario can be used if your HOA is doing the lawn mowing for your home. If the landscaper misses your home for the week, you never get the week back. Solve the problem. It is called customer service, which many seem to lack!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

They do not get money back to owner end of story. Contract with HOA. Period.

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MelissaP1 on 05/11/2017 8:49 PM
They do not get money back to owner end of story. Contract with HOA. Period.

Need to get back on your meds. Isn't the owners the HOA. "If you sue the HOA, you are suing yourself"?

The OP says the owner deserves some form of compensation. I also agree the owner should not have withheld his April payment. The HOA doesn't lose any money, only the vendor who DIDN'T, for whatever reason, didn't provide the service.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JosephH2 on 05/11/2017 1:48 PM
One of our owner's refuses to pay his April fee ($116) because his driveway wasn't plowed after a storm last winter.
It's true that it wasn't plowed due to a problem with our snow clearing contractor.

Since one of our HOA services is to plow driveways, it seems that he should get some kind of compensation but, at the same time, I don't know if we should allow an owner to not pay a fee.

Anyone have suggestions on how to handle this?

So ... How much is each unit charged that month for the service? Keep in mind the BOD is responsible for providing a service and which was not received. If the BOD did not take steps at that time to rectify the situation by having the Contractor plow a driveway ... then potentially that owner should not pay for services not rendered. The best route is to deduct the % of cost for plowing from that owners bill and everyone move forward.

GenoS (Florida)
Posts: 4,276

Posted:

There is never any reason to not pay your assessments in full. The end.

Find another way to handle it. Our landscapers miss mowing a couple hundred square feet of the grass in the back corner of my lot. I should get a 5% discount on my assessment next month? I don't think so. That's not how it works.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GenoS on 05/11/2017 11:06 PM
There is never any reason to not pay your assessments in full. The end.

Find another way to handle it. Our landscapers miss mowing a couple hundred square feet of the grass in the back corner of my lot. I should get a 5% discount on my assessment next month? I don't think so. That's not how it works.

Why not??? Especially if the Contractor was not given orders by the BOD to come back and fix the missed issue. Instead you would be willing to take such a stupid issue to court? And how much would that cost the HOA?

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Sorry it does not work that way. The money comes from the landscape company, not the HOA. The HOA does not lose ONE dime!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 05/11/2017 11:31 PM

Sorry it does not work that way. The money comes from the landscape company, not the HOA. The HOA does not lose ONE dime!

YES ... should be that way if the HOA makes sure the Landscape Company reduces their bill by amount the HOA and owner should not have to pay for services not rendered.

GenoS (Florida)
Posts: 4,276

Posted:

If push comes to shove and the liens the non-payer's property, do you think a court would look at anything beyond the 4 corners of the contract between the homeowner and the association to decide whether or not the lien is enforceable?

A. The board has the power to levy assessments
B. The homeowner did not pay his assessments

The homeowner loses 10 times out of 10 absent some incredibly compelling mitigating factors. "I didn't get my $10 worth of snowplowing 4 months ago," results in the guy also paying the association's attorney fees. There are other ways of dealing with it. Not paying your assessments is a recipe for disaster.

GenoS (Florida)
Posts: 4,276

Posted:

From a Florida HOA attorney in 2015:

Quote:

Quote
Always pay your assessments. No matter how you feel about the way the association is being operated and managed, you cannot withhold assessments and you will lose your home if you do. Even if the money is being embezzled, you still have to pay your assessments. State law makes it an absolute duty to pay and none of the other issues are a defense.

From a The Sun-Sentinel in 2003:

Quote:

Quote
The most important thing a unit owner or homeowner should remember is that you should always pay your assessments, even though you believe the board or association is not doing its job. Once you withhold your assessments, the association has the right to place a lien on your unit and foreclose if you fail to pay.

From a California property management firm in 2014:

Quote:

Quote
Excuse #1: "I didn't get what I paid for."

“My building hasn’t been painted in five years! I’m not paying another cent until some basic maintenance gets done.”

“The power was out for three days during the storm. I’m withholding a pro-rated amount from my assessment check.”

Residents have a right to require the homeowners association to perform its duties, and various legal channels exist to accomplish this, but withholding assessments is not one of them. Inform residents their obligation to pay assessments has nothing to do with the association’s obligations to provide maintenance and service. If they withhold their check or pay a reduced amount, they will become delinquent, which leads to late fees, and actually makes their situation worse.

I don't know what else to say.

RichardP13 (California)
Posts: 3,868

Posted:

Geno

Re-read my post. I Never once said the owner should have withheld his HOA dues in April. The HOA should have handle the issue when it was originally contacted.

POOR MANAGEMENT, POOR CUSTOMER SERVICE!!

SheliaH (Indiana)
Posts: 6,964

Posted:

As most everyone has said - you DO NOT have a right to withhold assessments. You have a legal obligation to pay it and it's always better to use other means to pursue a refund if you feel you're entitled to it. I'm sure the $116 he pays helps provide other services besides snow plowing and since he hasn't paid, would he like the Association to withhold the rest of them?

Assuming it wasn't the HOA's fault the driveway wasn't plowed, did anyone explain what happened to the owner? If he's just now getting an explanation, I can see why he's upset, although that still doesn't justify not paying the assessment (the HOA should apologize for the delay in providing an explanation, if appropriate). Did the company apologize for what happened and plow the driveway as soon as possible? And what do you mean by "last winter"? Are we talking the most recent on or the 2016-2016 edition? If this happened last year, why yell about this now?

Were there other homes whose driveways were skipped by the contractor? If so, the association should pursue a partial refund, put the money back in the general budget and then take steps with the contractor to ensure this never happens again. If you must issue the man a credit, you should know what the cost per homeowner is to provide the service and that's what I'd offer and nothing more (e.g. $75 if that's the cost per homeowner). If he wants to fight it, let him - he will lose.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RichardP13 (California)
Posts: 3,868

Posted:

Like most HOA's, just kicking the can down the road.

LetA (Nevada)
Posts: 2,679

Posted:

If I was on the BOD I would instruct the community manager to cut a check to the declarant for the individual cost for not plowing the driveway upon payment of monthly or quarterly assessment.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RichardP13 on 05/12/2017 6:56 AM
Geno

Re-read my post. I Never once said the owner should have withheld his HOA dues in April. The HOA should have handle the issue when it was originally contacted.

POOR MANAGEMENT, POOR CUSTOMER SERVICE!!

Ah, yes, I see now. We are in agreement!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Joseph,

What was the reason the driveway wasn't plowed?

Lack of access, blocked driveway (cars parked on it), etc., would be the expected answers.

JosephH2 (Pennsylvania)
Posts: 57

Posted:

The contractor says there was a car in the driveway. We have an agreement with the contractor that if a car is present, it's up to him to decide if he can plow it safely. This policy has been communicated to owners many times.

The owner says that a car was in the driveway, the plow guy said he wouldn't plow the driveway, so the owner shoveled enough to move the car, but by that time the plow crew were gone. So, the Board is trying to decide if we should have called the crew back.

It seems to me that no matter what happened, the owner has to pay his fees.

Separately, the Board will have to decide if we should compensate the owner.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I wouldn't compensate. Has to pay their dues. It was known that have a car in the driveway then no plow. So the plow people lived up to their side of the deal. Just because he plowed the car out is on him. It was his original responsibility to comply.

Why are you even listening? Is he threatening to sue? What is he going to get if he does? Court ONLY makes one "whole". Worst case scenario he gets the money for the skipped service and MAUBE legal costs IF court decides. Is it really worth it? Suing your HOA is suing yourself and your neighbors... The proof is on the filer. Who had a parked car in the driveway when the plow people came by... Clearly something that was communicated and part of the contract. Tell me how they win?

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

I use a company car in my job, so if I'm at home and see the snow plows coming around, I will get out and move my car in front of my garage (I have a one car garage and my personal car stays in there) so the street will be taken care of. What that's done, I move the car back onto the street so the plow can take care of our cul-de-sac (they also remove the snow in front of the garage. If there are cars parked in the visitor's section, they risk being buried as the plows do their work.

In our community, people have squawked at times when our plowing company would clean the streets, but because someone had their car parked, the snow would go right over it, thus creating a huge pile and the owner would have to dig it out. We tell homeowners they should move their car whenever possible and they get a snow removal policy every year, along with the upcoming year's annual budget.

Now that we know the entire story (this is why I like a bit of backstory), I have to agree with Melissa - the car had to be out of the way, the man didn't move his car all the way, so there you go. I wouldn't refund this guy anything.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JosephH2 on 05/15/2017 3:40 PM
The contractor says there was a car in the driveway. We have an agreement with the contractor that if a car is present, it's up to him to decide if he can plow it safely. This policy has been communicated to owners many times.

The owner says that a car was in the driveway, the plow guy said he wouldn't plow the driveway, so the owner shoveled enough to move the car, but by that time the plow crew were gone. So, the Board is trying to decide if we should have called the crew back.

It seems to me that no matter what happened, the owner has to pay his fees.

Separately, the Board will have to decide if we should compensate the owner.

Might have helped if this was shared in the beginning.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

In that scenario the Owner is at fault ... he knew the policy and had a car parked in the driveway. Potentially the Board should not have called the crew back.

Yes ... Owner still has to pay assessment fees.

IMO ... I would not compensate an Owner who was at fault. If you do then you will open a can of worms for future similar situations.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Joseph,

IF the Board is considering a refund (not a reduced payment) then the Board should also do proper calculations. I've often written articles for our newsletter breaking down what the monthly payment of each lot goes for. I've attached a copy of ours from last year.

As you can see, the amount toward snow removal is less the $5 for the month.

Something to keep in mind.

Tim

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