Right of Abatement

We are a 390 home single family HOA in SC. We have a Member who is in violation of several restrictions in our governing documents. We (the board of Directors) have issued violation letters and fines in accordance with our rules, however, the Member has not responded in any way. This has been going on for the last 8 months. The violations not only impact the Member property itself, but also neighboring properties as well. The violation letters are specific regarding the violations and the remedies the Member is required to perform.

The Board of Directors, which I am a member, is now considering exercising its Right of Abatement (RoA) to cure and remedy the violations at this property. Our documents provide for this RoA to cure the violations in accordance with the remedies provided in the violation letters to the Member.

Our documents do not provide any process by which the RoA must be exercised. My question is:

Is there a process that we should follow in exercising the Right?

Do we have to or should we advise the Member that we will exercise our RoA?

Do we have to or should we get estimates on the cost to cure the violations and advise the Member accordingly in a letter that we send advising him that we intend to exercise the RoA?

Should we consult with our Association attorney for advice and direction in this matter.

Any help or experience in exercising a RoA is appreciated.

DITTO

Re-DITTO

Not much to add to what's already been said, except...why have you let this go on for 8 months and are just now asking what to do next????

Rule enforcement is never easy, but when necessary, it must be consistent, fair and TIMELY. The longer you let stuff go on, the more difficult it can be to fix it. Next time, pull the trigger faster. And talk to your attorney about establishing a policy RIGHT NOW as to how these situations will be addressed in the future.

Our HOA we were able to enter property to fix a violation. That being that you owned the house and the lot it sat on, everything else was "common" property. You may have "exclusive" use of certain areas around your lot. The land was about the size of a postage stamp. We allowed fenced in back yards but if wanted them mowed, had to keep them unlocked for lawncare. Otherwise, we did not mow.

The only thing we were responsible for providing was lawncare according to our documents. Making the property around the homes "Common" property allowed us without the "trespassing" limitations. Everyone was informed that the property outside their home was owned and controlled by the HOA. Told members that the land was owed by ALL members.

We could enforce things like house paint (color/condition), color of shades in front facing windows, and fence approvals/safety. We did not install any fences but enforced restrictions and request repairs if needed. So if someone had a fence that was in bad shape we would notify them to fix it. If they did not fix the fence within 30 - 60 days, then we tell them we would fix it at our expense. Send them a bill for that expense. If they still did not pay us, then we could lien for the unpaid bill.

Keep in mind you can't just randomly "Lien" someone. The HOA has to prove it's spent money or has unpaid dues to lien. Lien's don't work like fines. They aren't punitive. Liens and foreclosures are legal means of collections. Fines are punitive and not income generating.

If they aren't cleaning up their violations, then consider your HOA's options. Does it have the right to fine? If so, does it have a fining schedule? If it can fix it and send the bill, where is that documented? You want to send them a notification and reference that right in your documents. Usually when someone is informed the HOA's rights to fix, bill, and lien, they take the repairs on themselves.

Settled out of court.