Enforcement Options

Started by VivianW • 23 replies • 717 views

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VivianW (Ohio)
Posts: 3

Posted:

My HOA has a list of restrictions on use in its bylaws, but we have no means of enforcement, such as warnings and fines. I am chairing a bylaws committee that would like to propose a reasonable, feasible system of enforcement. I am especially interested in systems in use in Ohio. I would like links or copies of the appropriate enabling documents and information on how well the system has worked.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By VivianW on 01/24/2019 8:19 AM
My HOA has a list of restrictions on use in its bylaws, but we have no means of enforcement, such as warnings and fines. I am chairing a bylaws committee that would like to propose a reasonable, feasible system of enforcement. I am especially interested in systems in use in Ohio. I would like links or copies of the appropriate enabling documents and information on how well the system has worked.

Review your governing documents. Many HOA's have a progressive fining system that is laid out in the rules and regulations not the By-Laws or CC&R's.. R&R's are easily voted on and amended by the BOD, CC&R's require a 2/3 majority of the owners to approve.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Typically your Declaration (aka Master Deed, aka CC&Rs) lists the restrictions and gives the Board the authority to impose fines or penalties, but it doesn't spell out what the fines or penalties should be. It's up to the Board to create rules and regulations with a fining schedule.

When we had to do this in my community, I looked at area community websites and was able to find a few handbooks that put their restrictions into plain English, with the fine(s) for violations of each. We used information from a nearby community that is very similar to ours and had the same sorts of restrictions, and we modified this information to suit our community.

We try to hit the sweet spot between being too nitpicky and being too lax; i.e., where the benefit of enforcing a restriction justifies the amount of effort needed to do so. For one or two restrictions we just discourage the behavior, with a warning letter or such, but beyond that we'll let it go if the behavior isn't disturbing the neighbors or causing other problems. For violations with more serious consequences, we will impose fines, and the Declaration gives the Board the right to pursue legal remedies through the courts. Fortunately fines usually discourage repeat offenses, but you'll occasionally have an owner who believes fines are just the cost of doing business or who wants to force the issue; then you have to decide if it's worth going to court over it.

We also discovered that our parking restriction was poorly written and wasn't really enforceable, so we had our attorney draft a revised restriction that the community approved.

As you can tell, a lot of the restrictions are black and white, but there can be a fair amount of judgement involved in enforcement. You want to end up with pretty solid rules and regulations, but not so airtight that the Board has no wiggle room in situations that don't merit a hard approach.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Good for you getting involved. My HOA is gearing up to begin a fining system. There are things that need to happen according to the Florida Statutes, but seeing you're in Ohio I won't mention those.

I'd say you need to create a "fining schedule" that spells out each violation and a fine amount for each one. That needs to be published to the owners and residents so that everyone is on notice and aware of how much they could be fined for various violations. Or, you could establish a flat amount for all violations. You can tailor that to meet your needs and I don't think you need to establish fines for everything. There are usually other enforcement actions available to an association depending on what's in your documents.

Our plan is to craft a fining schedule in the next few months, publish and post it, and give everyone 30 days notice that as of such-and-such a date the board will start enforcing violations according to the fining schedule.

I wish I could tell you how well it works but we haven't started doing it yet! Good luck to you.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

My sense is that your CCRs must mention or "link" somehow to the ability for the Board to develop rules and to fine.

I have never seen these sorts of things in Bylaws - although, I am in Florida.

Please read and fully understand all your governing docs and state statutes prior to going further.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Viv

If your docs allow for fining, which you say they do, then the BOD has to draw up Procedure and Fining Schedule before proceeding. Typically the first step would be to send a courtesy letter asking them to correct the violation and giving them a reasonable amount of time to do so. If they do not correct the violation, then commence fining.

VivianW (Ohio)
Posts: 3

Posted:

Cathy--
Thank you for your response. It sounds like you have approached the problem thoughtfully and effectively. Is there a way that you know of for me to find the documents or the links to the community websites where you located examples of restrictions and penalties? I need examples both to identify our alternatives and convince homeowners that this is something other communities have figured out. This site does not allow personal i.d.s, but what I am mainly missing is a model or two on which we can base our proposals.

RoyalP
Posts: 1,104

Posted:

Section 3. Fines. In addition to all other remedies, in the sole discretion of the Board of
Directors of the Association, a fine or fines may be imposed upon an Owner for failure of an
Owner, his family, guests, invitees, or employees to comply with any covenant, restriction, rule or
regulation, provided the following procedures are adhered to:
(a) Notice: The Association shall notify the Owner of the infraction or infractions.
Included in the notice shall be date and time of the next Board of Directors meeting at
which time the Owner shall present reasons why penalty or penalties should not be
imposed.
(b) Hearing: The non-compliance shall be presented to the Board of Directors after which
the Board of Directors shall hear reasons why penalties should not be imposed. A
written decision of the Board of Directors shall be submitted to the Owner by not later
than twenty-one (21) days after the Board of Directors meeting.
(c) Penalties: The Board of Directors may impose special assessments against the
Owner's property as follows:
I) First non-compliance or violation: a fine not in excess of One Hundred and
NollOO ($100.00) Dollars.
2) Second non-compliance or violation: a fine not in excess of Three Hundred and
Noll 00 ($300.00) Dollars.
3) Third and subsequent non-compliance or violation which are of a continuing
nature a fine not in excess of Five Hundred and No/I 00 ($500.00) Dollars.
(d) Payment of Penalties: Fines shall be paid not later than thirty (30) days after notice of the
imposition or assessment of the penalties.
(e) Collection of Fines: Fines shall be treated as an assessment subject to the provisions for
the collection of assessments as set forth in Article V hereof
(f) Application of Penalties: All monies received from fines shall be allocated as directed by
the Board of Directors.
(g) Non exclusive Remedy: These fines shall not be construed to be exclusive, and shall
exist in addition to all other rights and remedies to which the Association may
otherwise be legally entitled; however, any penalty paid by the offending Owner shall
be deducted from or offset against any damages which the Association may otherwise
be entitled to recover by law from such Owner.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Since I can't post specifics, I'll suggest searching for "Ohio HOA fining schedules" or something similar. When I did that it came up with links for Ohio communities as well as info and guidelines from websites that provide advice for associations (articles on "what constitutes a reasonable fining schedule" will be helpful).

Look for communities that are similar to yours in size and amenities - and if you're in an HOA, you should probably ignore the condo communities. Some HOA's may have general, one page statements of the fining schedule. Others can get more detailed and have different fines depending on the particular violation involved. Associations can also be more or less detailed on how they deal with repeated offenses or a refusal to correct a violation. My personal opinion is that simpler is better than more complex. It's easier for owners to understand, and it's less work to administer.

As John mentioned, many associations send a courtesy letter to an owner first before beginning to fine. We send two letters and begin fining with the third. Our goal is *not* to fine, and we do our best to convince someone of the error of their ways before resorting to financial penalties. This works well for us.

KerryL1 (California)
Posts: 14,550

Posted:

You have some excellent advice here, Vivian, especially Cathy's as she's in OH. If you give her your email address, she MIGHT reply with some specific names.

With some others, I don't think you want these in your bylaws. That's not what bylaws are for. And as others noted restrictions on use usually are in the Declaration. If they are and the declaration gives the board the right to fine then write Rules & Regulations with those restrictions in them and a fining schedule. As Rules, these usually are much asker to tweak than if in bylaws.

Like many others we (our property mgr) first sends a "courtesy letter" asking the owners to fix th violation. If they don't a invitation to a hearing is next, but you must do this the way that OH requires.

We have a basic fine for many violations. We have a few where we have an "immediate" call to hearing (no courtesy letter), for example dogs soiling our common areas, rudeness to staff or vendors's staff, objects of liquids of balconies onto units' balconies below (high rise).

IF your documents permit, you may withdraw common area privileges if you have any worth withholding; this also should be spelled out in your Rules & Regs.

Both courtesy letters & withholding privileges work very well in our 200+ condo HOA.

Our fining schedule & hearing procedures also is about a 1-1/2 pages long and include much of what RoyalP wrote (SC? docs, doc name?)

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By KerryL1 on 01/25/2019 9:06 AM
We have a basic fine for many violations. We have a few where we have an "immediate" call to hearing (no courtesy letter), for example dogs soiling our common areas, rudeness to staff or vendors's staff, objects of liquids of balconies onto units' balconies below (high rise).

You fine people for being rude? Sounds like a gold mine! It also sounds very subjective. The standard of "rudeness", for instance, is very different between Florida and New York.

Dog problems are front and center on our list of violations we need to start enforcing. We're struggling with evidentiary standards. Personal witness statements, photos, videos, etc. and the timeframes for making complaints are the subject of our current uncertain discussions. We don't want to spend $10,000 on cameras if, as we believe, one or two fines is going to engender widespread compliance. People don't pick up after their dogs on a regular basis and it's because they know they can get away with it. We need to change that.

KerryL1 (California)
Posts: 14,550

Posted:

To clarify, Geno. "Corroborated report of inappropriate behavior towards staff" is the violation. It's more than just simple rudeness and includes residents yelling or swearing at staffers. We had a couple of such incidences close together a few years ago by two different owners, both male, who loomed over our mgr. asst. at her desk and swore loudly at her. Both incidences were witnessed by others, so the board decided to make a rule about it. I think over several years, there've been one or two incidents and each was fined $100.

AugustinD
Posts: 5,144

Posted:

I think Royal's HOA's fine policy is good. It provides due process (notice and chance for a private appeal/hearing with the board; policy is well advertised; and so on). Maybe add a line about allowing the accused to bring witnesses, if needed. My HOA has a similar fine policy.

I presume somewhere it is spelled out that failure to cure the violation within say 30 days will result in the aforementioned escalation of fines, until the violator is being fined $500 per month.

VivianW (Ohio)
Posts: 3

Posted:

Thanks to all of you who replied to my query. Your posts are all thoughtful, and many provide detailed examples that will help carry forward the discussion in my HOA. I have summarized the responses by state to distribute to my committee and will accompany the summary with a print-out of your full posts. Good luck to all of you as you navigate the complexity of individual preferences and community needs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

One part of Royal's doc says:

(e) Collection of Fines: Fines shall be treated as an assessment subject to the provisions for
the collection of assessments as set forth in Article V hereof

If this is saying unpaid fines can be treated as unpaid assessments and that allows foreclosure, our attorney (one of the largest HOA firms in SC) says no way that would fly in SC. We had asked him about that specifically.

KerryL1 (California)
Posts: 14,550

Posted:

I, too like RoyP's post, but asked him his source. He's usually quite meticulous about citing them.

KerryL1 (California)
Posts: 14,550

Posted:

I, too like RoyP's post, but asked him his source. He's usually quite meticulous about citing them.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 01/27/2019 7:33 AM
One part of Royal's doc says:

(e) Collection of Fines: Fines shall be treated as an assessment subject to the provisions for
the collection of assessments as set forth in Article V hereof

If this is saying unpaid fines can be treated as unpaid assessments and that allows foreclosure, our attorney (one of the largest HOA firms in SC) says no way that would fly in SC. We had asked him about that specifically.

It appears that in Ohio, unpaid fines are treated as assessments (which agrees with my community's Declaration). This is from the NOLO website:

"State law and the HOA or COA’s governing documents, such as the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and bylaws, will often set out the type of charges that may be included in the lien. In Ohio, an HOA or COA is permitted to include the following in its lien (unless the governing documents provide otherwise):

past-due assessments
late fees
ENFORCEMENT ASSESSMENTS (for example, fines for violating the CC&Rs)
collection costs
attorney’s fees
paralegal fees, and
interest (Ohio Rev. Code Ann. § 5312.12(A), § 5311.18(A)(1))."

I would consult my association's attorney first, though, before including fines, just to be sure.

RoyalP
Posts: 1,104

Posted:

Quote:

Posted By AugustinD on 01/26/2019 3:47 PM
I think Royal's HOA's fine policy is good. It provides due process (notice and chance for a private appeal/hearing with the board; policy is well advertised; and so on). Maybe add a line about allowing the accused to bring witnesses, if needed. My HOA has a similar fine policy.

I presume somewhere it is spelled out that failure to cure the violation within say 30 days will result in the aforementioned escalation of fines, until the violator is being fined $500 per month.

Not 'policy' / it is a direct quote from Article X of the actual Covenants and Restrictions.

RoyalP
Posts: 1,104

Posted:

Quote:

Posted By KerryL1 on 01/27/2019 8:57 AM
I, too like RoyP's post, but asked him his source. He's usually quite meticulous about citing them.

My CCRs are too large to attach.

The section I quoted is from Article X.

It has withstood several legal challenges.

RoyalP
Posts: 1,104

Posted:

The OP merely requested a template, here is the full source:

AMENDED DECLARATION
OF
RESTRICTIONS AND PROTECTIVE COVENANTS
FOR
[redacted] HOA, Inc.

ARTICLE X
PENALTIES AND COMPLIANCE
Section I. Compliance by Qwners. Every Owner shall comply with the restrictions and
covenants set forth herein and any and all regulations pertaining to common areas, which from
time to time may be adopted by the Board of Directors of the Association.
Section 2. Enforcement. Failure of an owner to comply with such restrictions, covenants
or rules and regulations shall be grounds for action which may include, without limitation, an
action to recover sums due for damages, injunctive relief, or any combination thereof Failure of
the Association to enforce any covenant or restriction shaUnot be deemed a waiver of the right to
do so thereafter.
Section 3. Fines. In addition to all other remedies, in the sole discretion of the Board of
Directors of the Association, a fine or fines may be imposed upon an Owner for failure of an
Owner, his family, guests, invitees, or employees to comply with any covenant, restriction, rule or
regulation, provided the following procedures are adhered to:
(a) Notice: The Association shall notify the Owner of the infraction or infractions.
Included in the notice shall be date and time of the next Board of Directors meeting at
which time the Owner shall present reasons why penalty or penalties should not be
imposed.
(b) Hearing: The non-compliance shall be presented to the Board of Directors after which
the Board of Directors shall hear reasons why penalties should not be imposed. A
written decision of the Board of Directors shall be submitted to the Owner by not later
than twenty-one (21) days after the Board of Directors meeting.
(c) Penalties: The Board of Directors may impose special assessments against the
Owner's property as follows:
I) First non-compliance or violation: a fine not in excess of One Hundred and
NollOO ($100.00) Dollars.
2) Second non-compliance or violation: a fine not in excess of Three Hundred and
Noll 00 ($300.00) Dollars.
3) Third and subsequent non-compliance or violation which are of a continuing
nature a fine not in excess of Five Hundred and No/I 00 ($500.00) Dollars.
(d) Payment of Penalties: Fines shall be paid not later than thirty (30) days after notice of the
imposition or assessment of the penalties.
(e) Collection of Fines: Fines shall be treated as an assessment subject to the provisions for
the collection of assessments as set forth in Article V hereof
(f) Application of Penalties: All monies received from fines shall be allocated as directed by
the Board of Directors.
(g) Non exclusive Remedy: These fines shall not be construed to be exclusive, and shall
exist in addition to all other rights and remedies to which the Association may
otherwise be legally entitled; however, any penalty paid by the offending Owner shall
be deducted from or offset against any damages which the Association may otherwise
be entitled to recover by law from such Owner.

RoyalP
Posts: 1,104

Posted:

..... Good luck to all of you as you navigate the complexity of individual preferences and community needs.

No need for 'navigation' merely a need for reading and compliance with the EXISTING contract / covenant(s).

Many HOAs merely need more reading and compliance as opposed to 'opining' and 'thinking'.

There actually exists a CONTRACT and STATE LAWS which govern.

The BOD need simply execute.

hence the term 'executive'

RoyalP
Posts: 1,104

Posted:

OUT

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RoyalP on 01/27/2019 1:01 PM
My CCRs are too large to attach.

The section I quoted is from Article X.

It has withstood several legal challenges.

That's interesting. I also don't think that would fly in Florida BUT I have read numerous Declarations that are on file with my county that say pretty much the same thing, "unpaid fines are treated like unpaid assessments" or words to that effect. The issue has not been tested in any appeals court in FL as far as I'm aware.

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