Landscape Violations - fixing and billing homeowners

Stacy:

We have never tried that. I would be careful with this because of the potential for an irate homeowner getting into it with the landscape company. I would actually not recommend it unless you have a police presence. Does your community have a fine structure and policy in place to deal with these types of issues?

StacyC: Do your officially recorded documents, CC&Rs, dictate that unit owners are responsible for the ongoing maintenance of their outside landscape/property...grass mowing, weeding, and snow removal, etc.?

If the documents state unit owners are responsible, how have you managed to get those who resist, to comply to the documents?

Stacy, perhaps you need to review your fine structure. Can the fines be esculated enough so that the owner will chose to correct the problem? If not, then I would look into going to court to get an injunction before entering the property. If the owner realizes there will $1000's in legal fees perhaps that will get them to make corrections. For offsite owners perhaps your Board could offer to have the problem corrected and assess the owner's property.

StacyC: It is clear that your documents state it is the 'homeowner's responsibility' to maintain their lawn. Now, if some of the units are rented out, and/or the homeowners' themselves do not occupy the unit, it is STILL the homeowner's responsibility to maintain the lawn.

Perhaps you can get current info from the Property Mgr. as to whether the unit owners' have been paying their association fees regularly. The Prop. Mgr. should have a current address on file.

The owners clearly need to understand the importance of contracting with a lawn service company and to comply with the directives of the documents.

Stacy:

Just remember that once the board goes to court, gets the injuction to enter the property to mow the lawn, and then hires someone to do so....all the while the HOA is racking up the fees for all of the expenditures for X amount of homes; you now have a collection problem added onto these Owners that you say are not paying their dues and fines.

The best process is following your due process by bringing these Owners to a Hearing, asessing fines according to your state allowances and you should see in time the situation begin to clear up. Most times a resolution is sought at a hearing when the Owners are face to face with the board. Sometimes not, but in my experience most resolve the problem.

If the home is vacant or in foreclosure, then this is a horse of a different color.

StacyC, what state do you live in? Perhaps the county in which these non-complying members reside in have a county ordinance?

Our governing documents sound very similar to yours. We are allowed to fine. We are also able to place a lien of the home, for fines and assessments. We have and continue to impose “self-help”.

You are doing the right thing, because the neighboring houses see this and you are essentially loosing “ground” so to speak.

I would find a landscaping service to mow, edge, etc. and bill this amount to the homeowners account. After which the homeowner is notified, before anything is done.

Basically, a warning to comply of else letter. As always send this standard first class and signature requires mail, will be sufficient.

Best of luck and keep us posted
Chuck W

I hear what you are saying about trespassing, but our association has come to use county enforcement to help with lot owners who refuse to comply in a timely manner. It has helped and we don’t have to pay anything.

Certainly look into something like this.

I know I’m not suppose to post names, but I’m not sure how else to provide you this link as an example.

http://www.co.gwinnett.ga.us/cgi-bin/gwincty/egov/ep/gcbrowse.do?channelId=-25981&channelPage=%2Fep%2Fchannel%2Fdefault.jsp&pageTypeId=536880236

Chuck W.

The cleanup amount is Leinable. Whatever the HOA pays out to cleanup a violation of the rules, is billable to the owner and thus can be liened upon for NOT paying. As a general rule, I would avoid going through the small claims court avenue. It is MUCH MUCH better to LIEN than to sue as an HOA. They are BOTH judgements, but a lien prevents an owner from selling their house until the debt is cleared. The judgement from the lawsuit they can sell their home and not pay the judgement for years.

It's time to consider placing liens on the non-payers to get the message through. A few start responding and taking the HOA serious, then things may improve.

Someone said: Even though it seems silly to go to court over weeds,

------------

Technically, you're not going to court "over weeds," you would be doing in order to maintain the integrity of your governing documents.

And it's only "costly" in the short run and for the first one or two. After that, most get the message that the governing documents WILL be enforced, even when it applies to something seemingly petty to that homeowner, like weeds.

Remember, it's not about the weeds per se, it's about the integrity of your CC&Rs.

Hi Stacy,

I sympathize. Our community is experiencing the same problem. Some homeowners have poke weed as tall at 6 feet growing in their yards.

One solution we found, after non-compliance, we contact our local city government's Code Enforcement Department. They will come out and look at the property, site the homeowner, and if the homeowner does not clean up the property withing, I believe, 30 days they will be fined $500 a day.

This worked for us regarding a townhouse converted into a boarding house for illegals. The homeowner would not comply and we got our City involved. The problem was solved.

We recently sent out letters to two homeowners about weeds. If they do not comply within 15 days, we will then contact the City Code Enforcement Department. A threat of a hefty fine might do the trick.

Stacy, Following is an example of a letter I sent to a homeowner in a voluntary HOA. It is more difficult to get compliance than a manditory association because fines can not be used to effect 'encouragement' to achieve compliance. After receiving this letter the owner took care of their thistles and weeds
----------------------------------
Date: July 11, 2007

Re: Final Covenant Violation Notice - Thistles and other weeds

Dear Homeowner:

On June 20th you were informed by letter that the weeds by your driveway were a violation of the Covenants, Section 5, Nuisance “No noxious or offensive activity shall be carried on upon any lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.”

You were notified by my letter dated June 30th that this violation needed to be corrected within seven days. On July 9th I observed there had been no correction. Attached are two dated digital photos which document the tall thistles in the courtyard and thistles and other weeds by the driveway. I stopped and talked with you at your home yesterday to find out why the thistles and other weeds were still growing.

You said “I am a real estate attorney and the homeowners association, the board of directors, or you has any authority to enforce the Covenants.” You further argued that any action "would require 2/3 of the owners to have a quorum". You also advised that your wife and children had been out of the Country for three weeks at her sister’s funeral; and if this violation goes to court you would use that in your defense. I asked if you would agree that the violation would be corrected upon her return next week. You would not agree. Nor would you, as the owner of record, agree to correct this violation.

You did not want to listen to an explanation of the authority and I chose not to argue with you. The following information outlines the authority you questioned.

1. (name of subdivision), similar to other developments in Jefferson County, was established with protective Covenants and an Official Development Plan (ODP).

2. The monuments at the major entryways to the subdivision are posted with the (name of subdivision) and advise that it is a Covenant Controlled community.

3. The (name of subdivision) Homeowners’ Association has been incorporated in the state of Colorado since January 28, 1984.

4. The Homeowners’ Association is a voluntary association which may be joined by any lot owner upon payment of annual dues. Those owners who chose to join the Homeowners’ Association support all owners of property in (name of subdivision) by enforcing the Covenants.

5. The Homeowners Association has by-laws. These by-laws include the process for election of members to a seven member board of directors which includes four officers. The directors are elected annually at a duly called members meeting at which a quorum of 10% of the membership is required.

6. Information on the above controlling documents is provided to all homeowner before or at closing (title transfer); and the buyer agrees to these restrictions upon purchasing their property.

7. The Homeowners Association, through its Board of Directors, hired DARCO as their Managing Agent with Roger Borcherding being the community manager.

Since you claim to be a real estate attorney I presume you are already familiar with these documents. This information is provided in hopes of helping clarify any misunderstandings you may have. It is hoped that you will reconsider and chose to comply with the agreement you made to comply with the Covenants at the time you purchased your property. If so, please contact me immediately. Otherwise this matter will be forwarded to the association’s attorney. Be advised that if legal action is required to correct this violation the costs for attorney fees, court expenses, a contractor's expenses to effect correction, and all other associated expenses may be awarded to the prevailing party.

Sincerely,

___________________________________
Roger Borcherding,
Community Manager
Email: [email protected]
Phone: 303 925-0150 Fax: 303 925-1397