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What constitutes "shall be served"?

Started by AnneC6 • 37 replies • 846 views

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AnneC6 (Georgia)
Posts: 3
Posted:
We are an HOA in Georgia. A homeowner was sent an uncertified letter regarding a violation that had existed for some time and given 10 days to remediate. Another letter was subsequently sent after this window levying a fine and starting daily fines until remediated. Fines continued daily until almost 2 months later.

Issue: homeowner retains ownership but moved out of the home. Homeowner did NOT change address on file with the property management company and claims to have not received the initial letters because they were sent to the address on file. When property management finally did get in contact with the homeowner, homeowner claimed it was fair to give them 10 days from the current date, not 10 days from the original letter as they did not receive it when originally sent a month earlier. They demanded all fines be removed.

Bylaws state:
(a) DEMAND - Written demand to cease and desist from an alleged violation shall be served upon the alleged violator specifying: (i) the alledged violation; (ii) action required to abate the violation; and (iii) a time period, not less than ten (10) days, during which the violation may be abated without further sanction.....

My question is, what constitutes "shall be served" in this case? Does mailing the letter and retaining that information by the property manager constitute "served"? Did it have to be sent certified mail to be considered "served"?

Thanks for your help!
Board member but not a lawyer!
NpS (Pennsylvania)
Posts: 4,216
Posted:
"Served" would typically mean some form of verified delivery to an individual.

IMO, "mailed" wouldn't be sufficient.

On the other hand, if the recipient acknowledged receipt, that would be sufficient.

In your shoes, I would go with the date that the owner validated.
Sikubali jukumu. Read all posts at your own risk.
AnneC6 (Georgia)
Posts: 3
Posted:
Thank you for the follow up. I did some additional research, and am wondering if Georgia Code Title 9. Civil Practice § 9-11-6 applies...it was referenced as the "mailbox rule", which gives the recipient an additional 3 days after the date of the letter for what seems to be delivery time. My point in referencing it is it states a notice can be served by mail.

Georgia Code Title 9. Civil Practice § 9-11-6:
(e) Additional time after service by mail or e-mail.  Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him or her, and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By AnneC6 on 09/05/2019 11:22 AM
Thank you for the follow up. I did some additional research, and am wondering if Georgia Code Title 9. Civil Practice § 9-11-6 applies...it was referenced as the "mailbox rule", which gives the recipient an additional 3 days after the date of the letter for what seems to be delivery time. My point in referencing it is it states a notice can be served by mail.

Georgia Code Title 9. Civil Practice § 9-11-6:
(e) Additional time after service by mail or e-mail.  Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him or her, and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period.

You would need to speak with a local attorney to verify that the mailbox rule applies to the statute.

I see 2 issues:
1. If you had one location on file with the MC as the "service" address, but you sent it somewhere else, would the owner have a valid claim of "non-service"?
2. Let's say that this thing drags on for 5 months without anything being done to the remedy the situation. Economically, 5 months of daily fees isn't going to be that much different than 4 months of daily fees. And the owner has no defense on the 4 months.
Sikubali jukumu. Read all posts at your own risk.
AnneC6 (Georgia)
Posts: 3
Posted:
Only one address on file: the property address. That is where notifications were sent. Homeowner has since provided updated address at the same time to claim receipt.
SamE2 (New Jersey)
Posts: 310
Posted:
Was anyone living in the house? I think the goal should be to get the violation corrected. If that is the goal I would agree to waive the fines this time if you believe she moved, and remind all owners they need to keep a valid address with the HOA. Is the fine really worth the negative feelings of collecting it?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Anne

Are you all trying to extract money or a pound of flesh? Do you not just want the violation corrected?
Agree with the owner and get the violation corrected.
PaulJ6
Posts: 990
Posted:
Quote:
Posted By AnneC6 on 09/05/2019 10:38 AM
We are an HOA in Georgia. A homeowner was sent an uncertified letter regarding a violation that had existed for some time and given 10 days to remediate. Another letter was subsequently sent after this window levying a fine and starting daily fines until remediated. Fines continued daily until almost 2 months later.

Issue: homeowner retains ownership but moved out of the home. Homeowner did NOT change address on file with the property management company and claims to have not received the initial letters because they were sent to the address on file. When property management finally did get in contact with the homeowner, homeowner claimed it was fair to give them 10 days from the current date, not 10 days from the original letter as they did not receive it when originally sent a month earlier. They demanded all fines be removed.

Bylaws state:
(a) DEMAND - Written demand to cease and desist from an alleged violation shall be served upon the alleged violator specifying: (i) the alledged violation; (ii) action required to abate the violation; and (iii) a time period, not less than ten (10) days, during which the violation may be abated without further sanction.....

My question is, what constitutes "shall be served" in this case? Does mailing the letter and retaining that information by the property manager constitute "served"? Did it have to be sent certified mail to be considered "served"?

Thanks for your help!
Board member but not a lawyer!

A lawyer would likely be able to get the fines removed since the homeowner didn't actually get the letter for a while regardless of the address glitch.

So the HOA doesn't have a lot to stand on, if it were challenged.
KerryL1 (California)
Posts: 14,550
Posted:
I'm with Sam & JohnC
PestY
Posts: 128
Posted:
It means whatever a judge says it means.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
As far as I understand it the HOA has to deliver notices to the actual HOA address. That address whether they live there or not is what makes them a member of the HOA. You are to be an OWNER in the HOA which is designated by your address on the title/tax records.

Now members may not live at that address. It may be vacant or used as rental property. It still doesn't take away the property's address. Which is what is being addressed. So notifications should always in my opinion go to the HOA address no matter what. It is the 2nd notice or what I call "courtesy" notice to go to the owner's address on record outside of the HOA.

There have been cases of HOA's foreclosing on homes in HOA's and the owner claiming "ignorance". They say they never got the notifications etc... because they don't live in that home. They did not win as the HOA proved they sent notifications to the member's HOA address/property. If they get a certified letter sent back to them unopened then that just proves more of the HOA's case. No response from the owner as they did not accept the certified letter. Proof it was delivered to the address and returned.

I believe as an owner you should keep up with your property whether you live there or not. If you have renters, then they must notify you of any correspondence from the HOA. If there are letters left on the door, you should be checking for them if you come visit. At some point owners should take responsibility of their own property. The HOA shouldn't have to force feed it to them.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 09/07/2019 9:56 AM
There have been cases of HOA's foreclosing on homes in HOA's and the owner claiming "ignorance". They say they never got the notifications etc... because they don't live in that home. They did not win as the HOA proved they sent notifications to the member's HOA address/property. If they get a certified letter sent back to them unopened then that just proves more of the HOA's case. No response from the owner as they did not accept the certified letter. Proof it was delivered to the address and returned.

Please name a couple, hell name just ONE!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
https://www.alllaw.com/articles/nolo/foreclosure/dont-pay-hoa.html

Also saw a story on CBS Sunday Morning on this as well.
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
IN CA, Owners can have HOA mail t delivered to what every address they choose. Every year, the HA asks them to confirm what address and even 2nd address they want on a form.

We have 25% absenter owners who live all over the USA. Why in the world would it make sense to deliver HOA mail ONLY to their tenants?
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 09/07/2019 12:51 PM
https://www.alllaw.com/articles/nolo/foreclosure/dont-pay-hoa.html

Also saw a story on CBS Sunday Morning on this as well.

EXACTLY, where in that article does it say that sending it to the HOA address is sufficient, where?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Who said ONLY to their tenants? I said you mail it to the HOA address and ALSO to the address on record. I would want proof in court that the address to the HOA was indeed contacted via certified letter. Which would be a returned certified letter unopened and unsigned.

Your foreclosing on the property that the owner/member isn't paying dues on. The owner is recognized by their HOA property address. Tenants are not members of the HOA and not responsible for dues. So they don't have to be notified except by their landlord/owner.

Notification of intent to foreclose has to be run in a PUBLIC resource like a newspaper for a designated period of time. It's usually published in the LEGALS section of the newspaper ads area. Some papers just publish them 1 time a week. So the legal system is basically saying "Hey we posted it PUBLICLY so you have no excuse". So notification doesn't necessarily mean what you want it to mean.

A friend of mine wanted a divorce. His wife left him years ago and he had no idea how to find her to serve papers. The law allows one to run an ad in a newspaper Publicly announcing one's intent to divorce. He ran it for several months with no response. This was enough evidence for him to go to court for his official non-contested divorce.

So don't ASSUME that a foreclosure or even a lien can't happen to an owner without "notification". The announcement is posted in a PUBLIC resource after all. After I found out about this, I kept an eye on the Legal section of our newspaper to verify a many of non-responsive members.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Melissa,

You are one clueless person...I have to tell it like it is!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Yes Richard YOU have to tell me this. It's not like it's a FREE advice place here. Hush up and STOP with insulting other posters. It's NOT a good look.

So what part was I clueless? The FACT that PUBLIC notice is given it is considered LEGAL notice? Whether or not you READ public notices or not? It is called "LEGAL" section after all.

Yeah believe it or not a HOA can foreclose or even lien someone without them realizing it. Doesn't mean the HOA didn't give notice. An unopened certified letter to the owner's address. A PUBLIC notice in a newspaper. Letters even mailed through 1st class mail in their mailbox. Phone calls left for the owner. An owner can STILL try to claim no notification. The HOA can STILL follow through in court and win.

Oh by the way... A foreclosure STOPS as soon as the money owed is paid. A lien clears up as soon as it's paid. So the people who claim "Ignorance" or want to "Sue" the HOA over a foreclosure/Lien still need to PAY if they want to keep their home or get lien off. The process doesn't stop as long as money is owed and proven so.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 09/07/2019 6:49 PM
Yes Richard YOU have to tell me this. It's not like it's a FREE advice place here. Hush up and STOP with insulting other posters. It's NOT a good look.

So what part was I clueless? The FACT that PUBLIC notice is given it is considered LEGAL notice? Whether or not you READ public notices or not? It is called "LEGAL" section after all.

Yeah believe it or not a HOA can foreclose or even lien someone without them realizing it. Doesn't mean the HOA didn't give notice. An unopened certified letter to the owner's address. A PUBLIC notice in a newspaper. Letters even mailed through 1st class mail in their mailbox. Phone calls left for the owner. An owner can STILL try to claim no notification. The HOA can STILL follow through in court and win.

Oh by the way... A foreclosure STOPS as soon as the money owed is paid. A lien clears up as soon as it's paid. So the people who claim "Ignorance" or want to "Sue" the HOA over a foreclosure/Lien still need to PAY if they want to keep their home or get lien off. The process doesn't stop as long as money is owed and proven so.

The discussion was about a violation, NOT foreclosing on one's property!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
It is about how to give PROPER notice to an owner who is in violation. Which can extend into SAME as Foreclosure or a Lien.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 09/07/2019 7:01 PM
It is about how to give PROPER notice to an owner who is in violation. Which can extend into SAME as Foreclosure or a Lien.

I do this for a living, but I will defer to THE expert!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Well you would never be hired to be my "Expert". Your company practices raises too many red flags for me to be comfortable with. Consider yourself fired or never hired.
Former HOA President
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MelissaP1 on 09/07/2019 7:13 PM
Well you would never be hired to be my "Expert". Your company practices raises too many red flags for me to be comfortable with. Consider yourself fired or never hired.

Oh...I'm hurt.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Richard and Melissa

Your childish bickering is screwing up a bunch of threads

Please stop it.
RichardP13 (California)
Posts: 3,868
Posted:
If you have no issue with someone putting out inaccurate information based solely on their "experience", then I no longer see a reason to be part of this forum.
PestY
Posts: 128
Posted:
..... don't let the door hit you in the donkey on the way out
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Who assigned you "Forum" police? It's FREE Advice!!! What can you NOT understand that to mean? We ALL here have different experiences and different state laws to live by. I am here to hopefully give guidance to people who need it based on my own experience. I am NOT ever going to represent myself as an "Expert". Don't even pretend to be. I am an EX President/Vice-President/Board member of a HOA. I am also a previous HOA owner whom had been "bullied" by her HOA board and had to deal with issues as just a HOA member. Plus used my HOA as Rental Property for a period of time.

Most of the people here come here to hear people give advice because they are new HOA, board, or officer members. They don't come here to interact with an MC who is NOT exactly a member of a HOA except their personal one. My experience is from the eyes of those people who seek advice here NOT to shove it down their face as an "expert".
Former HOA President
CjC
Posts: 210
Posted:
Foreclosures and liens are court involved judegments and have a high standard of receipt of documents.
PestY
Posts: 128
Posted:
What constitutes "shall be served"?


A 'Twilight Zone' episode titled 'To Serve Man' comes to mind

http://www.metatech.org/wp/wp-content/uploads/2015/05/to-serve-man-cookbook.jpg

NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By PestY on 09/09/2019 11:53 AM
What constitutes "shall be served"?


A 'Twilight Zone' episode titled 'To Serve Man' comes to mind

http://www.metatech.org/wp/wp-content/uploads/2015/05/to-serve-man-cookbook.jpg


Cool connect.
Sikubali jukumu. Read all posts at your own risk.
PestY
Posts: 128
Posted:
..... just like chicken.

GeorgeS21 (Florida)
Posts: 3,808
Posted:
Late to comment - most HOA/POA/COAs have a first letter via normal main. Once there is concern about delivery being provable, I think most of us would shift to registered mail in some manner - just firing letters off into the ether doesn't seem like a reasonable way to establish an accounting trail for discovery.
GenoS (Florida)
Posts: 4,276
Posted:
I think certified mail, return receipt requested, is the way to go with a cost of around $10 last time I checked. Registered mail is something different and is more costly.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
Right - my point was some form of notification requiring a signature from the person to whom it was addressed.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
We used proof that certified letters were sent and returned unopened for our foreclosure case. The letters were addressed to the owner's HOA address. They did have a tenant at the time. Which IMO should have contacted their landlord to let them know "Hey they are delivering certified letters here". We had sent out about 3 of them for 3 months worth of notification. They also had a lien filed against them.

What matters the most is PROOF of delivery. Also remember ANYTHING going into a mailbox MUST have a stamp on it. So if you wanted to be so "picky" you can even charge for the stamp or delivery charges for notifications.
Former HOA President
MarkW18
Posts: 1,290
Posted:
A certified/registered does not go into a mailbox, it is signed for by the person it is addressed to.
FredS7 (Arizona)
Posts: 927
Posted:
Quote:
Posted By KerryL1 on 09/05/2019 3:45 PM
I'm with Sam & JohnC

And I'm with all of you guys.

Yes, the homeowner should have taken steps to get his mail. Yes, the HOA might win this. But the goal is to gain compliance.

Having said that, the homeowner should not "demand" removal of the fines. He should humbly request removal of the fines, and promise not to do it again.
StacyH (NC)
Posts: 19
Posted:
If there is language in your bylaws regarding proof of service, then it would probably save you a lot of trouble in the long run (as you are finding out now) to send things in a manner that allow you to prove delivery. One other thing in your post stuck out to me (because I'm also in Georgia) is that you say that the violation has existed "for some time". I don't know what that means, but thought I'd let you know that Georgia has a statute of limitations for covenant enforcement that is generally 2 years. If the violation you reference has existed for longer than that and the homeowner talks to an attorney who advises him/her of this, the HOA will probably be out of gas. If this applies to your situation, you might want to waive the fees and allow the extra time to get it corrected if the homeowner is willing to cooperate.

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