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Violation Letters and Management Company

Started by MaureenM1 • 20 replies • 1148 views

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MaureenM1 (PA)
Posts: 344
Posted:
Tried searching this first but doesn’t seem like ‘search topics” is working ...

Question - when a board member reports a violation of our Declaration, bylaws and rukes and regs to the property manager do they need full board approval to send out a letter or should a letter be sent since the declaration is clear. Ie. no trailers parked on common or limited common elements in the development.

We have 2 new board members who do not want to enforce the gov docs even though they were just trained on their duties. One is a returning board member who has
issues with the parking rules that were enforced by our last board. They want to form an ad hoc
committee to review declaration, bylaws, and rules and regs. And in the meantime not enforcing current gov docs
RichardP13 (California)
Posts: 3,868
Posted:
The management company works at the direction of the Board, not just one member. The community needs to step up and determine if selective enforcement is OK with them.
LetA (Nevada)
Posts: 2,679
Posted:
Answer to Question #1 No the Management company does not need full board approval to send out warning letters. The Management company is a vendor hired by the BOD to perform their job, manage the HOA. If the letter is summoning you to a meeting after you failed to correct the action outlined in the letter, then YES you need the full board approval for the action the BOD imposes.

YES the BOD can pick and chose what covenants they wish to enforce.. Many of the CC&R's are cookie cutter regs drawn up by lawyers for developers that build million dollar homes for the rich that get their panties in a twist if the coax cable for the satellite dish is not painted the same color as the exterior wall of the home.

Some regs work for some commentates, not for all.
KerryL1 (California)
Posts: 14,550
Posted:
Are you on the board, Maureen?

Since it sounds like your MC was enforcing this convent in the past, they should continue to. No two board members can contradict this practice. And a majority of the board cannot even vote to stop enforcement of that convent. The only way a covenant can be changed is by a vote of the homeowners.

It is true that some HOAs have a long history of not enforcing s certain covenants or rules & regs. So if a board suddenly begins to enforce one that hasn't been enforced in years, there can be an uproar.

But it sounds like this one has been enforced so imo, it should continue to be enforced.
MaureenM1 (PA)
Posts: 344
Posted:
Yes. I am the board president. In the past a board member reported a violation to the mc and they sent a letter. From time to time if it was a special circumstance the board would ask to review the letter to make sure our facts were correct. Now with the new board the mc is sending an email to the full board asking if she should send a letter. The mc has been with us for three years. New board members one month.
KerryL1 (California)
Posts: 14,550
Posted:
You're the president and and the whole board should vote at a meeting to instruct the manager to send the board the violation notice every time. The PM can't make that decision on her own or simply because two directors tell her to or not to.

What does your contract with the MC say, if anything, about this topic?

How many directors are there?
KerryL1 (California)
Posts: 14,550
Posted:
You're the president and and the whole board should vote at a meeting to instruct the manager to send the board the violation notice every time. The PM can't make that decision on her own or simply because two directors tell her to or not to.

What does your contract with the MC say, if anything, about this topic?

How many directors are there?
MaureenM1 (PA)
Posts: 344
Posted:
The contracts states the mc will send violation letters. There are 5 board members
JohnC46 (South Carolina)
Posts: 14,265
Posted:
With our BOD of 5, it takes 3 to agree a violation letter from the MC is warranted. That said, we have turned specific problems over to a designated BOD Member to deal with.

As an example, We are having issues with some owners not maintaining their lawns. While the issue was discussed by the entire BOD and a procedure was decided on, the action to implement such is being handled buy one BOD Member (me).
KerryL1 (California)
Posts: 14,550
Posted:
JphnC gives a fine example of how these matters COULD be handled . Still, major point is that Board as a whole should vote on his assignment AT a meeting, or in your case too, Maureen.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Okay let's say these members step up to the plate and want to enforce the rules... What powers do they have to do so? Can they fine? Can they lien for work the HOA does? Stop use of amenities? Exactly how is enforcement done outside of sending notices?
Former HOA President
ArtL1 (Florida)
Posts: 140
Posted:
Quote:
Posted By RichardP13 on 11/03/2018 9:07 AM
The management company works at the direction of the Board, not just one member. The community needs to step up and determine if selective enforcement is OK with them.

I'd like point out that picking which rules/restrictions to enforce and which to ignore is not the accepted definition of "selective enforcement." One of the board's duties is to enforce the CC&R, and to choose which rules either don't make sense to enforce or are not worth enforcing.

Selective enforcement, as may come up in legal disputes, is when an HOA enforces a rule inconsistently across the members. i.e. Suppose you have a rule against parking in the street, and you send member A violation letters for doing so, but member B down the street does it all the time and has never gotten a violation notice. When push comes to shove, if member A finds out that member B's identical violation has been ignored, the HOA may have difficulty enforcing the rule against member A.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By ArtL1 on 11/04/2018 9:14 AM
Posted By RichardP13 on 11/03/2018 9:07 AM
The management company works at the direction of the Board, not just one member. The community needs to step up and determine if selective enforcement is OK with them.


I'd like point out that picking which rules/restrictions to enforce and which to ignore is not the accepted definition of "selective enforcement." One of the board's duties is to enforce the CC&R, and to choose which rules either don't make sense to enforce or are not worth enforcing.

Selective enforcement, as may come up in legal disputes, is when an HOA enforces a rule inconsistently across the members. i.e. Suppose you have a rule against parking in the street, and you send member A violation letters for doing so, but member B down the street does it all the time and has never gotten a violation notice. When push comes to shove, if member A finds out that member B's identical violation has been ignored, the HOA may have difficulty enforcing the rule against member A.

I actually do know what it means.

Selective enforcement can mean selecting which rules to enforce OR which owners to select to enforce a rule.
KerryL1 (California)
Posts: 14,550
Posted:
I've seen value in both
Art & Richard's replies in the past. Can either of you offer any to the OP?
BillH10 (Texas)
Posts: 1,217
Posted:
Maureen

I believe the answer to your questions depends on the operating rules and practices which the Board and MC have established (if they have done so):

Examples:

The MC is directed to send letters regarding X, Y, and Z without further Board review or approval.

The MC will review observed violations in categories A, B, and C with the members of the Board, or perhaps a sub-committee, before the letters are sent.

The MC will review other situations not described above, or about which the MC has questions, with the Board prior to sending a letter.

I believe it is not effective, nor does it result in timely notification, if the MC has to review every violation with the Board, or even a sub-committee before an initial violation letter is sent. Certainly a Board review should take place before a Cease and Desist letter (perhaps the last step in the process) is sent. Otherwise the process will generate overhead for both the MC and the Board, and will delay having the issue addressed and remediated.

So, does your Board have any such operating rules in place? If so, they should supercede foot dragging on the part of Board members with their own agenda. If you do not have a Violations Policy in place, this would be a good time to develop and implement one.
KerryL1 (California)
Posts: 14,550
Posted:
Looks like sound advice from Bill, Maureen.
ArtL1 (Florida)
Posts: 140
Posted:
Quote:
Posted By KerryL1 on 11/04/2018 2:16 PM
I've seen value in both
Art & Richard's replies in the past. Can either of you offer any to the OP?

Bottom line is, the MC works for the board. If a majority of the board has officially decided a rule won't be enforced and informed the MC, one board member can't change that and make the MC send notices for violations of that rule.
PaulW9 (Illinois)
Posts: 14
Posted:


I'm not sure if this is slightly off topic, but if you are saying that the MC can deliver violations on their own, so then are you also saying they can start imposing monetary fines all on their own! That sounds wrong! There is no way that they should have that right without the board knowing!
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By LetA on 11/03/2018 9:10 AM

YES the BOD can pick and chose what covenants they wish to enforce.. Many of the CC&R's are cookie cutter regs drawn up by lawyers for developers that build million dollar homes for the rich that get their panties in a twist if the coax cable for the satellite dish is not painted the same color as the exterior wall of the home. Some regs work for some commentates, not for all.

So WHICH covenants can the owner pick and choose to follow?
PaulW9 (Illinois)
Posts: 14
Posted:


I would hope they would start with the most egregious ones first! Children's bicycles, too many flower pots, oh here's a good one they took a picture of my garden hose in the summer "because it was in the lawn" partially And these are the people that get to "fine" me for such nonsense! ....But there are some good MC out there..
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Paul

Do not make topics about you...you. Confine your personal issues to topics you started concerning them.

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