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Violations and attorney fees

Started by MelissaF4 • 13 replies • 1001 views

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MelissaF4 (Arizona)
Posts: 9
Posted:
Our board revised the Rules and Regulations CC&R violation and enforcement policy in 2013 that allows 1st and 2nd violation 14 days to correct.
A homeowner was sent a 2nd violation notice, does the HOA have to give the homeowner the 14 days prior to having the attorney send a letter with an addition penalty?
PaininyourA
Posts: 215
Posted:
IMO: yes
MelissaF4 (Arizona)
Posts: 9
Posted:
The Policy also states that it is subject to "amendment or modification at any time by majority vote of the board".
Do this mean that can be modify, case by case, depending on the homeowner and the violation?
Example, not allowing/rescinding the 14 days even after 2nd notice was sent?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
I say they have 14 day after the 2nd notice. I say you could/modify the rule but doing it capriciously on a case by case basis could cause issues.

We have a caveat in our fining schedule that if we consider the situation to be "dangerous" there is no waiting period. We invoked it recently with a car parked on the grass as we said it could kill the grass.

Day 1, Warning and warning of a $25 fine in 10 days
Day 10, $25 fine, warning of $50 fine in 20 days
Day 30, $50 fine, warning of $100 in 20 days
Day 50, $100 fine, warning of turning it over to attorney for collection/foreclosure within 10 days.
Day 60, $100 fine and off to the attorney for collection

At day 60 one owes us $275.00 in fines which the attorney will go after along with his cost to do so.

We have never had nor will we ever have a foreclosure by the association. At least that is the thinking of the past and present BOD.
FredS7 (Arizona)
Posts: 927
Posted:
Well you haven't said EXACTLY what is in your rules.

However it is important to remember that the objective is to bring properties into compliance, not to help your attorney pay for his boat.
MelissaF4 (Arizona)
Posts: 9
Posted:
Rules and regulation state 1st violation to be delivered to the home owner and given 14 days to bring the violation to compliance.
The 2nd violation is given no less than 14 days from the 1st notice with an initial monetary penalty of $50 and owner is given another 14 days to comply.

In this case the 1st violation was sent out and 4 months later the 2nd violation was sent (the 2nd notice did stated the homeowner has 14 days to comply). The day after the 2nd notice was sent, an attorney letter was sent to the homeowner for same violation with an additional $250 attorney fees. By law does the HOA have to allow the 14 days to pass prior to the attorney's letter being send out?
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By MelissaF4 on 10/26/2017 11:01 AM
Rules and regulation state 1st violation to be delivered to the home owner and given 14 days to bring the violation to compliance.
The 2nd violation is given no less than 14 days from the 1st notice with an initial monetary penalty of $50 and owner is given another 14 days to comply.

In this case the 1st violation was sent out and 4 months later the 2nd violation was sent (the 2nd notice did stated the homeowner has 14 days to comply). The day after the 2nd notice was sent, an attorney letter was sent to the homeowner for same violation with an additional $250 attorney fees. By law does the HOA have to allow the 14 days to pass prior to the attorney's letter being send out?

I feel like I'm being led to the answer you want. But, it seems pretty clear to me, given the info you've posted, that the attorney's letter should not have been sent until after the 14 days. That being said, if the violation is corrected before the 14 days pass, the member would not be responsible for the attorney's fees.

This does seem like a great motivator! Is it possible this was done on purpose to give the member a little more motivation to become compliant?
MelissaF4 (Arizona)
Posts: 9
Posted:
Thank you Douglas. I just wanted to get a second opinion in case I was missing something obvious.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By MelissaF4 on 10/26/2017 11:29 AM
Thank you Douglas. I just wanted to get a second opinion in case I was missing something obvious.

Please remember though, my opinion is not a legal opinion. I am not a lawyer.
PaininyourA
Posts: 215
Posted:
...merely an expert at repartee
DaveD3 (Michigan)
Posts: 796
Posted:
Quote:
Posted By MelissaF4 on 10/26/2017 11:01 AM
Rules and regulation state 1st violation to be delivered to the home owner and given 14 days to bring the violation to compliance.
The 2nd violation is given no less than 14 days from the 1st notice with an initial monetary penalty of $50 and owner is given another 14 days to comply.

In this case the 1st violation was sent out and 4 months later the 2nd violation was sent (the 2nd notice did stated the homeowner has 14 days to comply). The day after the 2nd notice was sent, an attorney letter was sent to the homeowner for same violation with an additional $250 attorney fees. By law does the HOA have to allow the 14 days to pass prior to the attorney's letter being send out?

Unless the board established different rules, published them to the membership, and provided an effective date, I would expect them to be legally bound to the published schedule. That they failed to follow up promptly with a second notice after the first is irrelevant.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By MelissaF4 on 10/26/2017 10:12 AM
The Policy also states that it is subject to "amendment or modification at any time by majority vote of the board". Yes "Rules and Regulations can be amended by a Board of Directors. However, keep in mind that unlike CCR's which are attached to everyone's property titles and MUST be followed. The Rules and Regulations must be reasonable and can in some instances be more easily challenged in Court.

Do this mean that can be modify, case by case, depending on the homeowner and the violation? NO ... cannot be modified on case by case. They are to be sent out to all owners and all should follow and be treated equally. If you start treating everyone different ... it can come back and bite you with potential legal litigation.

Example, not allowing/rescinding the 14 days even after 2nd notice was sent?
Same as already stated ... plus, you cannot recent after the fact.


I agree with Douglas in that potentially the Attorney letter was sent a bit too early. If the Owner corrects the issue in the time frame potentially the HOA cannot charge the attorney fee to the owner.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Sorry should be "cannot rescind" after the fact. LOL ... Darn that not allowing even a couple minutes to correct a post.
GuyS (Arizona)
Posts: 19
Posted:
Quote:
Posted By MelissaF4 on 10/26/2017 9:49 AM

A homeowner was sent a 2nd violation notice, does the HOA have to give the homeowner the 14 days prior to having the attorney send a letter with an addition penalty?

The HOA certainly has to wait 14 days before they can assess the penalty. It seems a waste to pay an attorney to send a letter before the fine can be assessed. See Arizona Revised Statutes 33-1803 for Arizona's requirements.

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