Quiet enjoyment clause

Hey there:

In my HOA the CC&Rs have the quiet enjoyment clause. One owner repeatedly insults some strollers and had been the object of several police report.

When the BOD and PMC is notified, the answer is always it is a neighbor to neighbor issue and does not take any action.

Is an owner justified to file a lawsuit against a board member based on that clause, or else what means the "quiet enjoyment" clause if the BOD refuses to enforce it.

Thanks,

John

Murrells Inlet, SC

And if you want to know if can file a lawsuit ... you will need to hire an attorney.

John, what do your governing documents say about who has the power to enforce the covenants? If you as a member has the power, then consider doing as Kerry says and also pursuing action jointly with other members. The best route might be to seek a (civil) restraining order or injunctive relief against the guy.

Nationwide the reports I read, when only words are involved, are that the police will deem this a HOA issue. The police response typically is to tell the member to seek action through their HOA's covenants and a civil (not criminal) lawsuit.

Are this person's remarks hostile on the basis of race, sex, religion, disability, or any of the other protected classes? If so, then you have a different and stronger case.

Augustin has the right angle ...

I would videotape him every time ...sooner or later he will say something that is actionable by the police.

See if he posts angrily on social media ...connect the two perhaps?

Law suit? Not likely to win either against HOA or owner.

Y'all

Thanks for your input. Nothing much can be done indeed. I have the emails of about 90 realtors that do business in my area and from time to time I inform the "list" of what's going on in my POA. I attached a joke at the bottom as salespeople like to share them.

Of course the BOD gets very upset at me in the stead of at themselves.

Have a blessed weekend,

John

Are you saying, JohnH, that you can't other "strollers" who are his targets to sign a letter or some other paper like a petition? You can't audio record him to show his disturbances? And turn these pieces o evidence over to your Board?

If you cannot or will not, then it is only a neighbor-neighbor issue.

Why do you do this?

Is it to hurt sales in the area, thereby potentially lowering sales prices within the development?
Is it to talk up the development as a great to live, thereby encouraging sales within the development?

Y'all

I don't have much faith in the dismal profession (realtors) and sold two houses "by owner" saving me thousands $$$ in commissions.

Location determines the price, not the realtors.

Thanks,

John

This is the WORST idea ever heard. Don't get why one would communicate with realtors? They are akin to used cars salespeople. However, I am friends with many of them and one day like to get my own Realtor's license. I just know would never in a million years contact one of them to pour out my HOA's woo's and worries. It's NONE of their business! The HOA isn't even responsible for providing the CC&R's, By-laws, or Articles to Incorporation to potential buyers!

Seriously, this practice is NOT helping anyone here. It's probably doing more harm than good. There is more than location in house selling. It's also what other similar houses sold or foreclosed for in that certain location in last 6 months. Telling your HOA's garbage is just making you look like a crazy person and your HOA in a bad light... All the information your providing is most likely public or accessible by other means. Considering the CC&R's and Articles of Incorporation ARE public documents. By-laws are exclusive HOA document ONLY for members. A potential buyer or a realtor is NOT a HOA member!

TimB4

Soon after I moved to my present gated community, the board was well aware an "owner" had too many pets (2 allowed) and did nothing as the "person" was a good friend of the board.

The "owner" passed away and they found dozens of cats inside, a window was apparently left open. They cleaned for months, the stench is still there ... DHEC (dpt of health and environment control) should inspect the house and determine if it is fit for occupancy (certificate of occupancy).

At a recent open house I could still pick up the stench, the agent told me other realtors get there one hour before showing it and spray deodorant. I can't believe they would do that!

As an aside, I faced a similar situation when trying to sell my house in XXX, an affluent suburb of Chicago, in 2004 not far away from this one, you can google the many articles, this one from the Chicago Tribune:

« A woman named XXX previously owned the house when neighbors in the Stone Fence Farms subdivision complained about sickening odors that were noticeable from afar.

Officials from both Vernon Hills and the Lake County Health Department inspected the home in 2004 and found about 130 cats living in the building. An additional 15 dead cats were also found throughout the house, according to health department documents.

About 70 of those cats were taken to an animal shelter, while 60 had to be euthanized.

XXX was not fined or charged with a crime after the 2004 incident, but a judge did order her to clean the house extensively. Complaints in 2010 led to an Aug. 11, 2011 inspection, which resulted in a condemnation notice. Officials said standing water was building inside the house and the electricity had been shut off. The breaker box was also damaged beyond repair.

"Moreover, the structure is virtually coated with animal urine and feces on the interior and in the heating and air conditioning floor registers," the inspector's report said. "These conditions are a hazard for anyone who may gain access to the structure; it is therefore dangerous and unsafe."

Another large number of animals were seized in the 2011 inspection.

The house was not repaired, however, and in May 2012 a judge authorized Vernon Hills to demolish the building and bring relief to the neighbors. The house was destroyed the following month at a cost of $21,000. »

I reported the situation to the village manager telling him the house should be razed to the ground ... it took 12 years!

In every POA one lives in, one expects the board to enforce the CC&Rs, don't you?

Thanks, John

PS NLT 8 realtors live here, 2 were even on the board

While the mystery is interesting, I think it’s time to give up on the OP.

If he is really is playing games with the interface between his HOA and the real estate sales community, and these games result in lower home values, I’m hoping someone does the right thing and hires that bright, hungry lawyer.

Tim

Quiet enjoyment and quality of life are more important to me than property values. Actions of the board increases or decreases both. Read this:

To "POA" Owners
“If you do not take an interest in the affairs of your POA, then you are doomed to live under the rule of fools.” — Plato, 340 BC.
We are again enduring a classic case of homeowner apathy which has allowed the wrong people to be in charge of the POA’s governance. To quote our President: "It's not the owners who vote that count; it's our POA Secretary who counts the votes."
You are never better served than by yourself.
To wit the second golf cart parking policy enacted by President LH at the request of … LH, a real man, after the sight of his neighbor’s golf cart became unbearable to him. Albeit the golf cart occasionally observed parked on his own driveway (lot 67) doesn’t appear to bother him the least!
Golf Cart Parking Policy (another one to be rescinded)
The intent of Article VII, Section 14 (Prohibited Vehicles) of the CC&R’s is that driveways are for parking of operable, licensed automobiles and light trucks. Golf carts do not fit that description and must be parked in the owner’s garage. However, nothing contained herein shall prevent the use of such vehicles within the confines of the Highwood community if they are operated as provided for in South Carolina Department of Motor Vehicles laws, i.e. have a valid Golf Cart Permit Decal, only driven in daylight hours and only by licensed drivers over the age of 16.
Keep in mind when reading below:
Policies cannot supersede CC&R’s RESTRICTIONS that always take precedent, for instance: « Prohibition of Motorcycles means the rubber cannot meet the road. »
Thanks, the Secessionists

From Secessionists to President XXX:

I am in receipt of the chain of e-mails between you, Mr. YYY and others regarding the short term parking policy.
For those who have been a part of our community for over 14 years, we will remember how business between the Board
and the residents used to be conducted. For example, when people wanted to change the motorcycle regulations in our
Community, the residents were canvassed and a vote determined the outcome of this decision. It may have not been
popular with some but, it at least allowed residents to have a voice. The standard answer to resident concerns by this
Board is that you elected us so we will make those decisions. For this Board to think that 99% of the community agrees
with all their decisions is wrong and very presumptuous. The real reason the Board does not hear from many residents is because they
do not want to be on the receiving end of the Board's nasty e-mails which somehow always get circulated to the membership
when someone dares to question a decision the Board has made.

It is the Boards responsibility to reestablish a proper decorum in this neighborhood and treat everyone with the respect they deserve and
allow residents to have an opinion without criticism and the courtesy of a response. Board members personal issues with
individuals are not issues the community wishes to have to deal with--this violates our rights to quiet enjoyment of our community.

Thanks, the Secessionists
From Secessionists to President XXX:

The purpose of the Restriction section in our CC&R's is to maintain property value. When the Board changes the restrictions they need to answer how it maintains our property value. Just saying , " The Board discusses every issue thoroughly". is not an answer to changing our restrictions. Please keep this in mind when other issues arise within our community, it's always about property values.

"Covenants" are promises. In effect, a buyer in a common interest development promises to abide by the governing documents and pay his/her assessments. The buyer does not actually raise his/her hand or sign an agreement making a promise to abide by the documents. The promise is imposed on the buyer as an equitable servitude that runs with the property and is fully enforceable against the owner of the property. A positive covenant is a promise to do something, and a restrictive covenant is a promise not to do something.
"Conditions" in a contract or agreement can suspend, or rescind, or modify an obligation. In other words, an event must take place before a party to a contract must perform their obligation. There are very few if any real conditions in a set of CC&Rs. Arguably, paying assessments is a condition to keeping one's house or condominium. Failure to pay them can result in the loss of ownership of the house or condo.
"Restrictions" are limitations imposed on owners on the use of their property. For example, restrictive covenants often limit the number and kinds of animals an owner may keep, the alterations they can make to their property, the number of vehicles they can park, etc. The purpose of the restrictions is to maintain property values as well as order among neighbors. They also have the effect of conferring rights on owners.

From the Secessionists to President XXX:

This is an interesting response to my legitimate question about changing the Short term Parking Policy. Nowhere in the Board's email does it answer my question about the benefits of changing the Short Term Policy.

The Board's email states it discusses every issue thoroughly then there should be an explanation on why this change was necessary and how it benefits our community as a whole.

As a homeowner in good standing I'm entitled to question decisions made by the Board. Policies changes should never conflict with the spirit of our CC&R's.

Once again I would ask the Board how does changing the Short Term Parking Policy add value to our community.

Thanks, the Secessionists

From President XXX to the Secessionists:

The Board has tried to respond to your questions in the past and as a result, you were never happy with any of our responses. You analyze every single word and define it on how it supports your agenda. No matter what we say or do, you are not happy. Whether you believe it or not, the Board discusses every issue thoroughly.

The Board is elected to make decisions. The Board knows we are not going to make everyone happy. If you are not happy with our decisions, please vote for someone that agrees with your agenda at the next election. Your one percent of the community that is unhappy with the Board.? Apparently, ninety nine percent of the community is happy with the Board.

Sometimes you come up with legitimate issues and we are willing to discuss these with you. But when you don’t get your way or don’t like our answer, you imply we are lying or we did something wrong.
As to the management company, FirstService Residential takes direction from the Board. They manage the community's administrative and maintenance issues. They have no authority over the Board. Sending messages or complaining to FSR staff about the Board is not the proper way to go. It only wastes their time and takes their time away from the work they are supposed to do.

Instead of the Board wasting all of our time going back and forth with these emails, the Board has decided not to respond to your emails from this time forward. We will still read your emails, and if there is a legitimate issue, we will respond.

In closing, let’s agree to disagree.

From Secessionists to President XXX:

In President XXX message dated January 16. 2018 it states

We all do our best to decide what the majority of owners want.

With that statement in mind can you please explain why was it necessary to amend the Short Term "Other" Vehicle Parking Policy.?

If you are going to say something please be honest in your statement it was never about the majority if it was then why didn't the Board send out a survey and poll the membership.

Here are some questions

How does changing this policy which contradicts the spirit of our CC&R's add value to our properties?

Who came up with this suggestion?

Is there a maximum amount of days per month an owner may have their other vehicle park in the driveway ? Example an owner could have it in their driveway for 5 days take it out for a day then right back for another 5 days and so on.

Also where is the justification on the benefits of this change ? It doesn't take someone 5 days to wash or unload a boat or a trailer.

Thanks, the Secessionists

The Board of Directors of POA
Occasional Short-Term “Other” Vehicle Parking Policy
June 27, 2018
The Short Term Vehicle Parking Policy adopted by the Board of Directors on July 13, 2010 is repealed
and is replaced by this Short Term “Other” Vehicle Parking Policy.
Article IV, Section 3 (e) and (f) of the Declaration of Covenants, Conditions and Restrictions for
POA and Article VII, Section 1 (a) of the Bylaws of the POA
Owners’ Association, Inc. grants the Board of Directors the power to adopt and publish rules and
regulations governing the use of the Common Property and the conduct of the Property Owners, their
lessees or guests; to adopt architectural guidelines for all dwelling units of the property, and to establish
penalties for the infraction of such rules and regulations.
Utility trailers, motor homes, campers, camper trailers, boats and other watercraft are not
permitted to be parked or stored long term in driveways. Short-term parking, not to extend longer
than five (5) consecutive days, for loading, unloading and cleaning is permitted. Owner must
notify Management Company of short term “other” vehicle parking prior to parking vehicle.
• Failure to notify Management Company of short term “other” vehicle parking will result in
a $25 fine.
• Any vehicle that has not been removed after day (5), the homeowner will be fined $25 per day
for days six (6) and seven (7), $50 per day for days eight (8) and nine (9), and $100 for every
day after until they are removed. The homeowner will receive a notice from the Board of
Directors or the management company informing them of the violation and request for
removal as soon as is reasonable possible after day six (6), but the fines will commence on day
six (6) regardless of when the actual violation notice is sent or received. It is the homeowner’s
responsibility to notify the Board of Directors or management company as soon as the vehicle
has been removed after day six (6) in order for the fines to stop.
This policy is in accordance with Article VII, Section 14 Prohibited Vehicles of the CC&R’s which
states the following: “Commercial vehicles, vehicles with commercial writing on their exteriors,
vehicles primarily used or designed for commercial purposes, tractors, mobile homes, trailers (either
with or without wheels), motor homes, campers, camper trailers, boats and other watercraft and boat
trailers shall be parked only in enclosed garages or areas, if any, designated by the Board of
Directors. Stored vehicles and vehicles which are either obviously inoperable or which do not have
current operating licenses shall not be permitted on the Property, except within enclosed garages. For
purposes of this Section, a vehicle shall be considered “stored” if it is put up on blocks or covered with a
tarpaulin and remains on blocks or so covered for five (5) consecutive days without the prior approval of
the Board of Directors. Notwithstanding the foregoing, service and delivery vehicles may be parked in
the Property during daylight hours for such period of time as is reasonably necessary to provide service
or to make a delivery to a Dwelling Unit or the Common Property.”
This policy applies to all Property Owners and Residents of the Association.
Approved by the Highwood Board of Directors, June 27, 2018

First and foremost, the board can adopt rules for "common property" and not for owners private property if it violates or conflicts with the letter, the spirit and intent of the CC&Rs.

Second, how can you enforce that, the board installed security cameras ($8K) by the gates as we do not have a guard.

Thanks,

JohnH38

I’m hoping the OP agrees, Tim.

If so, his HOA can start the legal proceedings ...🙂

Tim

OP stands for ... ?

Thanks

Melissa

You et al. appear obsessed with property values and sales. I built my house in 2004 for $300K and today Zillow says it is worth $355K (1.21 % compounded annual return). My previous house sold for $570 in 2004 and is worth $565K today, property taxes went from $9K to $14K nothing a POA board or an owner can influence that.

Several 1 acre lots in the "Estates" of my present development sold for $240K in 2004 and after the rogue and dysfunctional board allowed motorcycles (a big factor in Myrtle Beach) in spite of the prohibition of motorcycles (CC&Rs), these owners were unable to sell and prices plummeted to $50K before recovering today to ca. $90K.

How about your house, do you mind comparing your numbers with the above?

Thanks

JohnH38,

I support HOAs - I support working with the Boards of HOAs in constructive ways.

You sound angry, negative, argumentative, hard to reason with, and with a need to rant ... accordingly, I'm out of this thread.

Good for you, George. I'm baffled that some otherwise savvy regular posters are taking JohnH38's bait???

Yeah Zillow values are way over rated and not accurate at all. So is Trulia's. The one's that determine Home value is the Bank that loans the money. Since it's based on REAL numbers and NOT perception/dreams.

So if I walk down the street and say "Nice house", your going to hand me over the HOA's documents and tell me ALL the HOA's garbage? No thanks! I will keep walking and think you got issues...

Tim

Bobby is a board member who voted for the new short-term parking policy (see OP above). One of his neighbor has a trailer on his driveway for well over a week now, what is Bobby waiting for, why do I have to remind Bobby by email that his job is to enforce the rules?

« Bobby (lot xxx): It behooves you to knock on your neighbor door and start collecting the $25 as per your policy, it is just across the street from you. Good luck, JohnH38 »

Thanks

Melissa

First and foremost I would never have approved the policy of my post 65, it is illegal and unenforceable. It conflicts with the covenants.

As a board member, I would have the PMC handle it.

In regard to the OP, could you kindly post or write an association policy*** compatible with the "quiet enjoyment" clause that the board could implement in a manner acceptable to owners of a POA community. I will submit it for consideration to the powers that be.

Bobby is not a bad bloke, just slightly out of his gourd on a board. He was selected and replaced a director who intentionally resigned just after the board elections. He suggested knocking on owners doors and enforce policies (not me!).

Thanks

*** the ByLaws allow the board to enact policies that reinforce/codify the CC&Rs.

Melissa

Reread OP 66 if I had an answer I would not ask. There is no rule at present, just a vague clause the board can or could possibly clarify. Never saw such a clause before.

Every development has its douchebags, that's for sure!

It takes two to tango.

Gratias