New HOA Vs. Zoning Laws and Fair Housing Act

Started by ChloeL • 57 replies • 3874 views

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ChloeL (Oregon)
Posts: 46

Posted:

Hi, I really need some information as I truly believe I am in the right. I live in a small condo conversion complex, with only 37 units. The HOA is in its first year. The ccr's state that we cannot operate a comercial business with employees, customers or clients. You know the generic clause. I have never been quiet about the fact I watch two children in my home, both of whom are children of close friends. I charge just enough to feed them. I recieved a letter from the property management firm stating that the HOA had concerns I was running a day care in my home and requested I sign a statement at the bottom of the letter saying that I wasn't and send it back with in five days. Oregon State Statutes state that if you watch 3 or fewer children in your home, besides your own children, it is not considered childcare. It also seems to state that if you are a landlord you can't prohibit your tenent from in home child care up to 10 children. (You can have a higher deposit though). Anyway, I went to the HOA meeting and tried to discuss it with the board and property manager and at one point one of them said that just to babysit an occasional child would be ok. It was brought up then that hiring a babysitter would be wrong because they would be an employee and I brought up that I frequently hire people to assist me in my home due to a severe injury that limits my activities. The property manager told me that I was in violation and could not hire people to help me because I was paying them and I couldn't watch these two children in my home due to recieving money. He had stated previously that even if I didn't accept money, but another form of compensation, it would still be in violation. Help! I refuse to sign the letter because I don't want to shut the door on future babysitting, or even when my son is older, his opportunity to babysit. Isn't babysitting a normal activity for a single family dwelling and does oregon law supercede the HOA trying to prohibit child care? They say that essentially I signed away any rights that I may have when I moved in and signed the HOA documents. I do believe I did not sign away my constitutional rights as a citizen of the united states. Any Help Would Be VERY Appreciated.

BradP (Kansas)
Posts: 2,640

Posted:

Chloe:

Our CC&R's state the same thing except it has listed child care as an exception. Let me get this straight, if my wife and I wanted to go out to dinner I can't hire a babysitter to watch my kids if I lived there? I think you are right, but it sounds like you have a rogue board on your hands. I think it may be a good idea to consult an attorney to ask your rights, I would think you could get a free consult just so you know the ground you are standing on.

ChloeL (Oregon)
Posts: 46

Posted:

That is exactly what they are saying. They further went on to say that we elected them to make all the decisions for us. I said no, we elected them to make decisions based on what we the homeowners want. It's our complex and we all have a say on what we want. They believe we gave them absolute power. The funny thing about all this is that they only have my word on the child care I do. There is nothing I am doing that is causing any distress for anyone.

thank you for your input, I really appreciate it. Any idea what type of attorney would be the best? Contract or Real Estate?

BradP (Kansas)
Posts: 2,640

Posted:

Chloe:

On the attorney part I am not sure, any attorney could direct you in the right direction. I am not advocating suing or anything of that nature, but I think it is important to know your rights so when they say you can't do this you can say yes I have the right to. Legal action should be a last resort after everything else is exhausted.

ChloeL (Oregon)
Posts: 46

Posted:

I am concerned that the board is not going to let this drop. I don't know what they can do to me if I don't sign the letter. Giving that they put a time limit to return the letter makes me think they have something else planned.

BradP (Kansas)
Posts: 2,640

Posted:

Chloe:

There will be some more knowledgable people on here tomorrow that will give you a lot better advice than I did. The reason for the no business rule is to keep traffic and disruption down, both you don't seem to be causing. If you are in violation of the CC&R's they can fine you, however, before you are fined you should be allowed a hearing on the issue. The piece of paper they are asking you to sign makes no sense to me and given what you have told us I wouldn't sign it. There is nothing they can do to you if you refuse to sign that. Hang on, you will get some more advice tomorrow.

Watching two kids is not a commercial business. They have no leg to stand on if what you have said is true, they are fishing.

Furthermore if you can't hire anyone to be on your property how is a homeowner supposed to get anything repaired or upgraded in your home? I would send them a certified letter stating that you appreciate your concern but you are not running a commercial business out of your home and you have every right to hire people to perform tasks around your home and you consider the matter closed. Be polite but firm. As I said wait for tomorrow, more people will chime in.

ChloeL (Oregon)
Posts: 46

Posted:

Bravo - Well stated. I like the idea of a certified letter. I will wait for more advice. It is only 8pm here on the westcoast even though it looks like I am posting at 1am. I feel better anyway. I just want to be able to live quietly and enjoy my little area. However, I will not lay down and be trampled.

Let's see what tomorrow brings.....

Chloe

RogerB (Colorado)
Posts: 5,067

Posted:

Chloe,
If I was not creating a problem for anyone then I would advise the property manager that I was not in violation. That there is nothing in the Declaration which resticts me from having "guests" visit my home. I would be careful not to create any nuisance or proof which could establish otherwise. At this stage I would not present any other arguments.

ChloeL (Oregon)
Posts: 46

Posted:

Actually I am not creating a problem for anyone, really, I swear. I have very nice neighbors in my building that say they have no issue at all with any of my activities. (I am home all the time and they never really see or hear me). That's why I went to the meeting to put all of this nonsence to rest, but I seem to have made it worse because they can't accept that they are wrong about me. They say that if they don't do anything they are opening the door to everyone running day care in there home and they will be sued if a child drowns, etc., really pushing the limit of what this is which is not a violation. The property manager seems to be the hard head in all of this saying that anytime you accept compensation, monetary or otherwise, for services it is a business and I am in violation.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Are any social security numbers being exchanged? If not, then your NOT employing anyone and your not employed by anyone. There are laws in regards to when a person is considered hired help and the provider has to list them on their taxes. This is mostly in regards to "domestic help".

I don't believe your considered a "daycare provider". Your income isn't reported to the IRS is it? You also don't need a license to operate your babysitting service. You have to have a few more kids and be inspected by the health department if you were. The HOA is out of line. Your NOT advertising your services or putting a sign on your door.

I'd wouldn't tell your HOA anything and stop dealing with them. They are definetely overstepping their bounds. Besides, what's the punishment they will give you? Not allowed to use fines for basis of liens in most states. So they can't fine you and enforce it. Can't lien you if you keep up with your dues. They can't foreclose on you because your not behind in dues and there's no fine penalties. Wait until they take action, if any. If they sue, it's cheaper for you to countersue and they have to provide the burden of proof. Which they don't have.

Former HOA President

JudithC (Virginia)
Posts: 253

Posted:

I don't know, you don't believe that you are running a day care center, so why wouldn't you sign the letter? Sign it and keep doing what you are doing. It doesn't say "cease and desist" from running one does it? Seems to me if you don't sign it you are admitting you are running one.

In most municipalities this is as other people say and would not be considered to be a business. Although everyone has those clauses the county won't enforce them unless it is created a nuisance through traffic/parking.

We had a board do this here and we had a hot headed lawyer at the time egging them on. I am sure she thought she was going to make a big name for herself as the attorney who created the precedent that this was a business. It had to do with a rental unit, the owner was tired of being pushed around so he hired an attorney. I was on the board at the time, and this was a rogue action -- never voted on by the board or even discussed at a board meeting. I quit, as did another person later when they wouldn't stop this nonsense. Eventually things got nasty enough that the remaining board quit, we formed a new one, and got on with our business.

Sometimes there is a service in your county/state that you can go to and get an attorney for 1/2 hour or so that sets you on the right track. If there is anyone connected with HOAs (in our county it is the consumer affairs group) you might talk with them. Check into the resources available.

They may just be trying to bully you. I know in our case the association had one of those lawyers who said "try it, if they fight back, you can always drop the matter". So, the appearance of another attorney and the thought that they were really hanging the association out to dry sort of made them rein in their enthusiasm. The sad thing is the PM should know better, but so should our attorney, so what can you say?

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By JudithC on 08/05/2007 4:48 AM
I don't know, you don't believe that you are running a day care center, so why wouldn't you sign the letter? Sign it and keep doing what you are doing. It doesn't say "cease and desist" from running one does it? Seems to me if you don't sign it you are admitting you are running one.

Judith:

If it were me I wouldn't sign it as a matter of principal. No where in our docs does it state I am required to sign anything. By not signing you are not admitting or doing anything, by signing you are playing their game.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Judith,

#1 I don't believe I would enter into a conversation with the Board or MC.
I would make note of all conversations as to time, who was present, etc., up to now.

#2 Then I would send them a certified letter and request that the Board and the Management Co. inform you by certified mail, of the specifics of your supposed violations. Make them write out what they are charging you with and why.

#3 If they do this, fine, then you know what you are charged with.

#4 If they don't, I would go on as before.

#5 If they access a fine or issue a restraining order or whatever, then fight that specific action. As said you may need a lawyer.

I feel your effort to settle this by arguing with the board and MC is not the thing to do. At some early time in your conversation with them I am sure you realized trying to make these folks see your position was fruitless. You could have made your request for specific charges at thaat time and walked out the door.

Also, in spite of all you say, I think you still are not convinced you are absolutely right. Best do some real home work on this, there are several people on this site that are experts in this kind of law research. If you do decide to go the legal route, stick to the law.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

OOOOOOOPPPPPP'S

Sorry Judith,

Meant Cholea

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,

In regards to this post:

How is renting property justified if businesses is not allowed?

Y&ou advertize your property and pay for that, your can get a Rental Agent and Pay for that, you collect money for your service of providing a place to stay, you give up your right to enjoy the property to your renter, you pay a cleaning service to clean up from your rental period, (and here I am not sure how it works), you file some kind of IRS forms for tax purposes, and you have to keep some financial accounting of all these activies, and you probably turn that over to your tax person and pay him.

JudithC (Virginia)
Posts: 253

Posted:

No problem Robert, I figured it out --

I guess Brad's argument that the documents don't say that you have to sign something like that is convincing to me. I do think it would be wise to have a chat with an attorney, though, just so you know how to handle things such as this. You tried to be reasonable and talk with them at the meeting -- they just dug in their heels -- so, it appears that there might be a rough road ahead. Also, from my experience in a similar situation the board did not back down gracefully.

JeanneK3 (Maryland)
Posts: 562

Posted:

I would not sign the board's letter but I would send the Board/Manager a letter quoting the Oregon Statute that says 3 or less children is not a child care business and send it registered mail. If that doesn't do it, file a complaint with the state or federal Fair Housing administration with a copy to the board.

CarolineV (Arizona)
Posts: 1

Posted:

I would not sign. Look at the state statutes on HOA'S. with the access on the internet to your state legislature, you will be able to findout what your state laws say the board can and can not do. About your hiring someone to help you due to disability, thay are wrong. Federal law takes over there no matter what your state or anyone else says. They would be violating you civil rights. Order your self a copy of Title II and III booklets and read, read. You amy have a center for disablity law that will represent you on just the disablity part, for free. In AZ the AZ center advises you the if you need to file suite the Attorney Generals Office files the complaint for you all with out charge. On the matter of the watching children or babysitting you will need a private Attorney's advice on that.
Regards,
Caroline

BobM5 (California)
Posts: 34

Posted:

Rather than seeking a lawyer, look into a local mediation service. Many local governments provide such service for free or little cost.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Caroline,
I can speak from knowledge recently received from the State Attorneys Office in SC. Their office will NOT give any legal advice about States Laws coverning HOA'ss and Condo's. They did tell me if I can get an elected official to request the specific information I requested, they will respond to them.

And what specific question did I ask? I asked if they would tell me specifically if the Horizontal Property Act of the State Statute, requires that Condo and HOA Associations meetings be open to members (regular meetings). Of course I have read this document and as far I as can determine, it is not in there. This has been going on for weeks. First they said I had to hire a lawyer, then they said they could not do this and sent me a Lawyer Feferral list, then they tell me they will do it if I can get an elected official to inquire. 10 days ago I e-mailed three places in the county council offices. One told me since I have e-mailed another office in the county they will not go any further. The County Council's Main Office and my individual respresentative have not replied. Eventually I will go to the Open Council meeting and ask if the County Council is required to have open meetings, why is it not required for all Corporations licensed by County. What a pain.

DJ1 (Ontario)
Posts: 798

Posted:

I'm with some of the others. Wait and see what they do. DON'T send a letter that says you are/are not running a day care. Let take action and prove you are in violation. Opening ones mouth (or in writing) can be used later, but saying nothing is neither an admission or denial of guilt.

JudithC (Virginia)
Posts: 253

Posted:

My problem with not doing anything is I have seen how our board reacts to that. They get furious because the homeowner is ignoring them and can get quite vindictive. If someone comes in and talks to them they are much more willing to work with them, and in fact seem to fawn over them showing how accommodating they can be. Actually it appears like letters don't work with them they want the person to come a begging. Now, of course, Chloe has responded by going to the meeting, so perhaps that would take care of it, though my impression was it made things more difficult. It is just a serious mistake to not do anything with our little group, so I would hate to recommend that Chloe just sit back and wait. Then they go in to the lawyer and say "see this letter we sent and she did nothing in response". Lawyer goes "oh my, we can't have people ignoring the association", he goes to the judge --"look at this person, she signed a contract to obey the covenants, we tell her she hasn't and she just throws the letter away", etc. etc. There probably aren't any minutes that reflect the conversation at the meeting, so it is the same as that never happened. Nope, I think there should be something official.

ChloeL (Oregon)
Posts: 46

Posted:

I think that even if the conversation isn't in the meeting minutes, several homeowners were there were arguing on my behalf also so I think I have enough witness's to the discussion. Here is what the letter says:

The Board of Directors of the Association of Unit Owners of (deleted due to confidentiality) Condominiums is lawfully bound to uphold the Declaration (CC&Rs), Bylows, Resolutions, and any rules and regulations enacted for the good of the Association.

The Board is concerned taht you may be violating CC&Rs Section 9.1, which states that units are to be used for residential use only, not commercial and the Bylaws, Article VII, Section 1, Use as a Private Dwelling only, which also restricts units from having regular "customer" or "client" visits; by operating your unit as a 'child daycar' commercial business for payment to you.

The Board needs your signature that you are NOT operating such a daycare business. Please sign where indicated below and return one signed and dated copy of this letter to me in the enclosed postage-paid envelope within one week from the date of this letter. Keep the other copy for your records.

Thank you in advance for your cooperation. Please call if you have any questions.

Sincerely

(yadda yadda yadda)

Association Manager

cc: Board of Directors

I am not operating a child daycare business in Unit # xxxxxxxxxxxxxxx Condominiums in violation of the Associations's CC&Rs and Bylaws.

signed______________________ Date___________________

That is it in full. I would sign something that states I am not in violation of state statutes regarding not more that three children, not including my own, are present therefore I am not a Child Care provider nor am I running a business which is bound by state licensing, inspection, etc. I am afraid if I sign this then I really won't be able to babysit. A little background for you all, I work from home answering phones for a local business at night, I am required to be by the phone 14 hours a night. I cannot leave, even for a moment. When I was working outside the home I couldnt afford daycare, the expense was staggering. I nearly fell through the cracks of the welfare system of the working poor. Since I am lucky enough now not to have to pay daycare expense, and my son needed socialization, I opened my door several years ago for two children. I charge the parent $10 a day flat rate and if that proves too much, I have them bring food in exchange. I would rather donate my time to help these working single parents than pay through my taxes to have them on public assistance. I am very passionate in my belief. I am going to sell in about two years but I do not want to abandon these children that I have been working with. They and their parents are indeed close friends now. This is my little contribution to society I guess.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By ChloeL on 08/05/2007 5:56 PM
I think that even if the conversation isn't in the meeting minutes, several homeowners were there were arguing on my behalf also so I think I have enough witness's to the discussion. Here is what the letter says:

The Board of Directors of the Association of Unit Owners of (deleted due to confidentiality) Condominiums is lawfully bound to uphold the Declaration (CC&Rs), Bylows, Resolutions, and any rules and regulations enacted for the good of the Association.

The Board is concerned taht you may be violating CC&Rs Section 9.1, which states that units are to be used for residential use only, not commercial and the Bylaws, Article VII, Section 1, Use as a Private Dwelling only, which also restricts units from having regular "customer" or "client" visits; by operating your unit as a 'child daycar' commercial business for payment to you.

The Board needs your signature that you are NOT operating such a daycare business. Please sign where indicated below and return one signed and dated copy of this letter to me in the enclosed postage-paid envelope within one week from the date of this letter. Keep the other copy for your records.

Thank you in advance for your cooperation. Please call if you have any questions.

Sincerely

(yadda yadda yadda)

Association Manager

cc: Board of Directors

I am not operating a child daycare business in Unit # xxxxxxxxxxxxxxx Condominiums in violation of the Associations's CC&Rs and Bylaws.

signed______________________ Date___________________

That is it in full. I would sign something that states I am not in violation of state statutes regarding not more that three children, not including my own, are present therefore I am not a Child Care provider nor am I running a business which is bound by state licensing, inspection, etc. I am afraid if I sign this then I really won't be able to babysit. A little background for you all, I work from home answering phones for a local business at night, I am required to be by the phone 14 hours a night. I cannot leave, even for a moment. When I was working outside the home I couldnt afford daycare, the expense was staggering. I nearly fell through the cracks of the welfare system of the working poor. Since I am lucky enough now not to have to pay daycare expense, and my son needed socialization, I opened my door several years ago for two children. I charge the parent $10 a day flat rate and if that proves too much, I have them bring food in exchange. I would rather donate my time to help these working single parents than pay through my taxes to have them on public assistance. I am very passionate in my belief. I am going to sell in about two years but I do not want to abandon these children that I have been working with. They and their parents are indeed close friends now. This is my little contribution to society I guess.

Chloe:

This would be my response:

Dear Association whoever:

I was in receipt of your letter date XXXXX. I appreciate your concern for our association and for following our deed restrictions and keeping our neighborhood a great place to live. Regarding the issue that you wrote me about, please be aware that Oregon State Statute says that a person watching less than three children other than their own does not consitute commercial childcare. Since State Statutes supercede all HOA documents I consider the letter you sent not applicable to my situation. I consider this matter resolved, thank you for your time.

Sincerely,
me

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Choela,
You have a quick practice of posing non legal problems in your conversation.
You also could be making trouble for yourself. Stick to what is written in the laws you have quoted, don't mention money and what you charge or don't charge and don't mention your other actions that generate money. Don't try and buy your way out by putting your situation on the board and expect to get a reprieve that way. I am sure the Board and your friends are aware of your situation. Enlist their help in establishing a strong case you are doing nothing wrong.

It sounds as if they may let you off the hook if you sign the paper. Talk to a Board member privately and get the scoop. They may be just covering their butt.

DJ1 (Ontario)
Posts: 798

Posted:

I find the idea of asking a resident to sign a letter saying they are not violating a covenant idiotic.

They may be on a fishing trip and one slip of the tongue will give them the ammo to use against you.

Obviously the Board has certain duties so that part of the letter is redundant. It is up to the Board to determine if you are or are not violating a CCR, not to THINK you might be.

For them to send you a letter because they think you MAY be is ridiculous! Using their logic why don't they send every homeowner a letter asking them to indicate they are not violating the CCR's.

RogerB (Colorado)
Posts: 5,067

Posted:

Chloe,
I would not sign or return their letter. Instead I would write:

Dear Sir:
I am not in violation of the restrictions listed in your letter dated ______.

Sincerely,
Signed ____________

I would not provide anything else. Do not mention state laws because the HOA's CC&Rs can be more restrictive. Do not mention money. However, friends are allowed to give gifts to friends. And you are allowed to have guests visit your home.

Meanwhile you must be very careful not to create a nusaince. Otherwise there is a proveable case case against you.

DaneC (California)
Posts: 210

Posted:

"I charge just enough to feed them." In other words, you are reimbursed for their snacks - I can't see how that has become "receiving money."

"I recieved a letter from the property management firm stating that the HOA had concerns I was running a day care in my home and requested I sign a statement at the bottom of the letter saying that I wasn't and send it back with in five days." I would ask them to provide the legal definition of a day care and provide the source of that definition.

"I brought up that I frequently hire people to assist me in my home due to a severe injury that limits my activities. The property manager told me that I was in violation and could not hire people to help me..."
It was not quite clear, if these assistants, were for the child care.

Is there a schedule contained in the by-laws, that shows this violation and related fine?

CONDOMINIUMS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
100.405 Association of unit owners; powers; granting of interest in common elements; dispute resolution.
(4)(k) Impose charges for late payments of assessments, attorney fees for collection of assessments and, after giving written notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association, provided that the charge imposed or fine levied by the association is based:

(A) On a schedule contained in the declaration or bylaws, or an amendment to either that is delivered to each unit, mailed to the mailing address of each unit or mailed to the mailing addresses designated in writing by the owners; or

(B) On a resolution adopted by the board of directors or the association that is delivered to each unit, mailed to the mailing address of each unit or mailed to the mailing addresses designated by the owners in writing;

ChloeL (Oregon)
Posts: 46

Posted:

Time for Attorney, or just roll over and sign the letter, because the property management firm sent me a letter fining me $25 a day until I "cease operation as a daycare business in my unit."

BradP (Kansas)
Posts: 2,640

Posted:

Chloe:

Did they give you an opportunity for a hearing? If not then they can't fine you. Sounds like your BOD is not very smart.

JudithC (Virginia)
Posts: 253

Posted:

Perhaps you should send back the letter as Roger suggested and also acknowledge receipt of the current letter by saying that it is your understanding that there must be a hearing before a fine may be imposed, and your wandering into a board meeting is not a hearing. From what you have said it is not clear to me what they are fining you for. They said you MIGHT be violating the home business rule. Saying some smushy stuff about how you appreciate them never hurts either.

Meanwhile, I really would check to see if there is some inexpensive legal advice I could get. Perhaps even the department in your county that encourages small child care operations could point you somewhere. You can almost be sure that this has happened before.

ChloeL (Oregon)
Posts: 46

Posted:

There was no mention in the first letter of what would happen if I didnt' send back the letter signed and in this second letter there is no mention of an appeal. I spoke with the PM and he said I had five days to appeal from the date of the letter (August 3 and I just got it today). I got him to verbally extend the appeal for a week from today. Maybe I should just send in the letter signed. I asked the PM to send me a written definition of "commercial business" and he refused. I looked up the definition and commercial refers to "for profit." So technically I am not violating the CC&R's and should sign. What do you think? Also I think that from this point forward I should operate a play group and not take any compensation of any sort and just donate my time. What do you all think?

JudithC (Virginia)
Posts: 253

Posted:

I am not sure why people are against your just saying that they are correct, you are not operating a commercial business. Then they would have to prove you are it seems to me. I don't think you have to lose money on the deal to satisfy your association. It seems to me you are being reimbursed for expenses which happens all the time. I bet even the board members are reimbursed for expenses they incur as being a board member.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By ChloeL on 08/08/2007 1:09 PM
There was no mention in the first letter of what would happen if I didnt' send back the letter signed and in this second letter there is no mention of an appeal. I spoke with the PM and he said I had five days to appeal from the date of the letter (August 3 and I just got it today). I got him to verbally extend the appeal for a week from today. Maybe I should just send in the letter signed. I asked the PM to send me a written definition of "commercial business" and he refused. I looked up the definition and commercial refers to "for profit." So technically I am not violating the CC&R's and should sign. What do you think? Also I think that from this point forward I should operate a play group and not take any compensation of any sort and just donate my time. What do you all think?

Chloe:

Here is my issue, they send you out a letter telling you to sign and return in 5 days, they don't even give you a chance to do that and are sending you a violation letter with a 5 day appeal from date on letter. That is pure horse crap IMO.

My other issue is what proof do they have of you running a business? What did they cite in their letter as proof, are there pictures, statements from neighboors? Normally when a violation letter is sent you sent a picture or some kind of evidence with it. What proof do they have that money has exchanged hands? Even if you run a play group they will see the kids and not understand that no money is being exchanged and will badger you. Plus I see nothing wrong with what you are doing now.

I would send them a letter as Roger and others suggested earlier telling them you are not running a commercial daycare out of your home. I wouldn't sign their form, I would just supply your own letter.

ChloeL (Oregon)
Posts: 46

Posted:

here is what was drafted and sent regarding fines:

whereas the board of directors is empowered by statutory law ...... ... . .. . . . .

Fines Schedule
"The Association may establish a schedule of fines which shall apply to the violation of any provision of the Declaration."

First offense $25.00
Second Offense $50.00
Third Offense and beyond $100.00

Any unpaid fines would be subject to the same rules as the annual assessments. It is the intent of the Board to implement the fine schedule as a deterrrent not a source of revenue for the XHOA Board.

Fines are assessed by the Board of Directors in accordance with the Fines Schedule, and begin on the day noncompliant homeowners receive an official written notification of violation from the President of the Board (or his/her authorized representative). If fines are not paid and the noncompliance corrected within 30 days of written notification, the applicable fine with double.

ChloeL (Oregon)
Posts: 46

Posted:

OK How's this for a letter:

To whom it may concern:

I am in receipt of your letter addressing concerns that I amy be running a commercial business from my home in violation of our CC&R's.

I am NOT in violation of the CC&R's for operating a commercial business in my home. Therefor the fine of $25 a day does not apply.

Thank you,

blah blah blah

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By ChloeL on 08/08/2007 1:24 PM
here is what was drafted and sent regarding fines:

whereas the board of directors is empowered by statutory law ...... ... . .. . . . .

Fines Schedule
"The Association may establish a schedule of fines which shall apply to the violation of any provision of the Declaration."

First offense $25.00
Second Offense $50.00
Third Offense and beyond $100.00

Any unpaid fines would be subject to the same rules as the annual assessments. It is the intent of the Board to implement the fine schedule as a deterrrent not a source of revenue for the XHOA Board.

Fines are assessed by the Board of Directors in accordance with the Fines Schedule, and begin on the day noncompliant homeowners receive an official written notification of violation from the President of the Board (or his/her authorized representative). If fines are not paid and the noncompliance corrected within 30 days of written notification, the applicable fine with double.

Chloe:

I really hate to say it, but I do think you should consult someone about your rights. No where in the fine schedule you sent does it mention a hearing or give an opportunity for a hearing. Also, to send someone a fine letter first without the opportunity to correct the situation is not right either. Seems to me due process does not apply in your neighborhood.

TracyT (Maryland)
Posts: 228

Posted:

Chloe

"Time for Attorney, or just roll over and sign the letter, because the property management firm sent me a letter fining me $25 a day until I "cease operation as a daycare business in my unit." "

I agree with Brad.

In addition to this very poorly written schedule and it appears that the BOD/MC have already deviated by fining you per day.

They think you have day care center = 1st offense. You have 30 days to correct the voilation. We're letters sent to you by certified, return receipt? I think you need professional help with this.

Good luck

RobertR1 (South Carolina)
Posts: 5,164

Posted:

I quote: The Board is enpowered by statutory mlaw.

Isn't that the state law?

Now, assuming there is not some personality issues that have influenced a great deal of this issue, I would ask for a hearing and request they provide one in five days. I would state that they are, in your opinion, not allowing you due process.

I would state you would be happy to provide to them your interpretation of how you consider the Day Care Law requirements.

I would request in the letter that at your requested meetings, you will need a complete compilation of why you are being threatened, who specifically is making this charge, the names of any attorneys that provided them with legal advice and explain it is your intention to subject this matter to the courts for arbitration. I think you said your state was Florida, if so send it to the Omdudsman selected by the state.

The purpose in all this is to give them other things to think about. Whether you can do it as above or in some other fashion I would not at this point sign anything. Get them to be specific as to chapter and verse. Make them send you names of those involved, request to view the records of the HOA and MC, whatever you are allowed to do. I hope you catch my drift, take the offensive while being nice about it and if your long term plan is to not abide by their demands, then string it out and keep good records, see how far they will take you. It sounds as if you are starting to consider it is just not worth the troube, if so, cut it short, do what they want and be nice about it, but don't pay any money, if you decide this way. Just tell them you consider the matter closed and you have abided by their ruling.

JudithC (Virginia)
Posts: 253

Posted:

This is what Roger had suggested:

"Dear Sir:
I am not in violation of the restrictions listed in your letter dated ______.

Sincerely,
Signed ____________
"

Perhaps now that you have gotten a second letter, add before Sincerely:
"I am in receipt of your letter of _____. I presume it is null and void since I am not violating said restrictions."

I don't like the wording of "the fine doesn't apply".

Of course best would be to have an attorney, but this might give them pause and perhaps they will back down. As I said before these people like responses!!!!

ChloeL (Oregon)
Posts: 46

Posted:

This is the section of the Bylaws that they are fining me for violation of:

Failure by an owner (his or her family, invitees, or lessees) to comply with the rules of
conduct and restrictions set forth here or others promulgated by the board of directors shall be cause
for the board of directors to deny or restrict the owner's right to use any common-element facility
with respect to which the owner otherwise had a right of use.

Section 1. Use as Private Dwelling Only. Each of the units will be occupied as a singlefamily
private dwelling by its owner or tenants, visitors, and guests, and for no other purpose.
Subject to complying with applicable local ordinances and other restrictions of record, an owner may
use his or her unit as a "home office," provided clients, customers, and employees do not regularly
visit the "home office." All common elements shall be used in a manner conducive to such purpose.
No unit owner shall be permitted to lease his or her unit for a period of less than 30 days. No unit
owner may lease less than the entire unit. Any lease agreement shall be required to provide that the
terms of the lease shall be subject in all respects to the provisions of the declaration and the bylaws
and that any failure by the lessee to comply with the terms of such documents shall be a default
under the lease.

And from the CC&R's:

9.1 General. Each unit is to be used for residential purposes only. The common elements shall be used for the furnishing of services and facilities for the enjoyment of the unit owners. Additional restrictions and regulations are set forth in the bylaws and rules or regulations adopted pursuant to the provisions of the bylaws.

ChloeL (Oregon)
Posts: 46

Posted:

Quote:

Posted By JudithC on 08/08/2007 2:05 PM
This is what Roger had suggested:

"Dear Sir:
I am not in violation of the restrictions listed in your letter dated ______.

Sincerely,
Signed ____________
"

Perhaps now that you have gotten a second letter, add before Sincerely:
"I am in receipt of your letter of _____. I presume it is null and void since I am not violating said restrictions."

I don't like the wording of "the fine doesn't apply".

Of course best would be to have an attorney, but this might give them pause and perhaps they will back down. As I said before these people like responses!!!!

Thank you, with your permission of course I will use it. I will type out a letter and send it and see what happens.

Looks like I will have to unpack my printer finally! (And yes, I am still unpacking!)

GloriaM (North Carolina)
Posts: 829

Posted:

Chloe:

Watching your child and a friends children is not considered a daycare. If you had cars driving in and out of the community dropping kids off might be construed as a daycare. Signs put up in the yard advertising, play equipment all over the board could have a concern.

Send a simple, short and sweet letter.

ChloeL (Oregon)
Posts: 46

Posted:

Good news! I managed to get my case heard through a pro bono state service. However the intake interview is for Wednesday, my deadline for my appeal. Any ideas how to ask for an extention with out throwing the "Lawyer" card in to this?

JudithC (Virginia)
Posts: 253

Posted:

Chloe, that is good news. I would just tell them that I have prior commitments (or if you have already agreed to it, that an emergency came up). If they say you have to show up or else just ignore that, keeping the documentation, and discuss it with the attorney.

ChloeL (Oregon)
Posts: 46

Posted:

No, its the deadline for filing the appeal for the $25 a day fine. I have to have the written appeal along with any documentation supporting my case in by Wednesday. I could probably fax late in the evening a request for an extention late in the evening on Wednesday then if they deny it at least it will give me until after the consult with the Attorney.

JudithC (Virginia)
Posts: 253

Posted:

I'd just ask for an extension, say for personal reasons you can not get the documentation together until a week after the deadline. I would not wait until the very end at which point they will think you are messing with them -- which you would be. If they refuse you, just let it be. It seemed to me that it wouldn't be $25/day from what you quoted anyhow. The fine schedule doesn't say per day, unless it says it somewhere else.

TracyT (Maryland)
Posts: 228

Posted:

Should Chloe send in her letter? This would put the ball back in the BODs hands. While they contemplating their next move (or not - one can hope!) she has time to meet with her attorney. My two cents . . .

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Cholea,

Not sure why you wouldn't want to tell them the truth. It's a better explanation than trying to dream up something. Just tell them you are discussing your circumstances with council at that particular time and say you will let them know what your consultant recommends you do. At the end tell them you are sure, in view of the circustances the board would not want to access any fines until you have exhausted your due process.

Then tell them, "I look forward to further discussion about this issue with the Board. I feel positive we can set this problem to rest in the near future."

BradP (Kansas)
Posts: 2,640

Posted:

Chloe:

Not sure if I am a day late and a dollar short, but I would have just send in a basic letter asking for a hearing to appeal the fine, then met with the attorney and went from there. Good luck, keep us posted.

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