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Logical Arguments Against Selective Enforcement

Started by NpB • 50 replies • 1100 views

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NpB (Arizona)
Posts: 605
Posted:
There has been a problem in my HOA for decades with selective enforcement and looking the other way/ignoring violations. New Board members were elected and are trying to enforce the rules for a change and evenly.

There was a painting deadline where all homes had to be painted by September 30th. The Board voted in Executive Session last week to retroactively (to September 30th) fine two homeowners whose homes remained unpainted. One Board member is now saying she has been emailing one offender about his house being unpainted and that it would be good for offender to come to the next Board meeting to discuss. This Board member is friends with the offender and I am assuming it was psychologically difficult for her to fine the offender $50/day. Obviously it's a huge red flag and a concern that a Board member is communicating with an offender about either Executive Session topics or Board business, which breaches the duty of loyalty.

If the offender comes to the next meeting to contest the fine and he convinces a majority of the Board to reverse or lessen the amount, would there be a good argument to say "Well we now have to reverse to lessen the fine for the other offender too, in order to treat everyone equally and avoid selective enforcement."

Next example: If a homeowner requests a variance in trim color and is denied by the Board, but still decides to paint that trim color he was denied in defiance. Board decides to fine for being out of compliance. Weak Board caves in and reverses the fine and permits the trim color, could I then say "Ok, you have just opened up a pandora's box. I will be painting my house a non-approved trim color tomorrow. If you decide to fine me, I will file a case with the Department of Real Estate for discrimination and selective enforcement. If you are not going to enforce the rules equally, youhave essentially permitted people to paint any trim color they want, with no consequence."

It is psychologically difficult for some Board members to fine friends or even neighbors because they want to create some sort of pseudo-harmony and they think giving appeasements will create that. Yet, these same Board members want strict guidelines and strict deadlines on painting etc.. but once a homeowner gets a fine or if it's going to cost them a lot of money to repaint or remove a non-compliant architectural feature, they are quick to give an appeasement.

Would I be correct in mentioning that if you give appeasements to Homeowner X, you better give it to me or not fine me, or else I or another homeowner who don't receive the same treatment for the same situation will go to the department of real estate and file a case for selective enforcement?

MelissaP1 (Alabama)
Posts: 13,836
Posted:
I am sorry can someone define "Friends" with another HOA member and being a "Neighbor" of a HOA member? I am sure there is a difference but just not seeing it....
Former HOA President
CathyA3 (Ohio)
Posts: 6,299
Posted:
It's my understanding that courts can use selective enforcement as a reason to rule against an HOA when they do try to enforce a restriction. Owners are also more likely to cooperate when they see that everyone is held to the same standard. These two things, plus basic fairness, are the main reasons against selective enforcement.

Unfortunately, it's almost impossible for communities to avoid it. Over time you'll have boards that are more or less concerned about the rules and who will have different ideas about when to overlook something. In addition, our attorneys say that it's not appropriate for boards to do daily walk-throughs in an effort to catch people the minute they step out of line. So enforcement is always going to involve some measure of judgement and attempts to be "reasonable". Courts are big on "reasonable". Too bad that the word isn't defined more precisely.

My condo association's Declaration states that lack of enforcement in the past does not preclude enforcement now. However, we never had to test this in court.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By MelissaP1 on 10/18/2019 4:08 AM
I am sorry can someone define "Friends" with another HOA member and being a "Neighbor" of a HOA member? I am sure there is a difference but just not seeing it....

I

The Board member has openly stated that she is friends with the offender. Of course the word "friend" has multiple meanings to different people.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By CathyA3 on 10/18/2019 5:29 AM
It's my understanding that courts can use selective enforcement as a reason to rule against an HOA when they do try to enforce a restriction. Owners are also more likely to cooperate when they see that everyone is held to the same standard. These two things, plus basic fairness, are the main reasons against selective enforcement.

Unfortunately, it's almost impossible for communities to avoid it. Over time you'll have boards that are more or less concerned about the rules and who will have different ideas about when to overlook something. In addition, our attorneys say that it's not appropriate for boards to do daily walk-throughs in an effort to catch people the minute they step out of line. So enforcement is always going to involve some measure of judgement and attempts to be "reasonable". Courts are big on "reasonable". Too bad that the word isn't defined more precisely.

My condo association's Declaration states that lack of enforcement in the past does not preclude enforcement now. However, we never had to test this in court.

Excellent comment about owners more likely to cooperate when everyone is held to same standard. Agree 100%. I just don't understand why the same people who want strict rules and guidelines are the same people who are quick to give out appeasement and overlook infractions, in order to create a pseudo harmony, when in essence it just forms an impression that the Board is weak.
NpS (Pennsylvania)
Posts: 4,216
Posted:
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.
Sikubali jukumu. Read all posts at your own risk.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.

I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?

I think asking for a tax returns is way out of line, totally invasive, and doesn't prove anything by itself. I don't think boards want to get into the business of evaluating anyone's finances. You either accept financial hardship as a valid excuse (and boy, is that ever a slippery slope) or you don't.

It's a bit easier to take a harder line in condos, which have more joint expenses, since if someone isn't paying, everyone else has to make up the difference. It's not appropriate to expect one's neighbors to act as a lender of last resort if someone is experiencing financial difficulties. (Yes, I know that sounds heartless. I know that people can get into financial trouble through no fault of their own. But making a decision that benefits one homeowner at the expense of the rest seems to violate the board's fiduciary duties.)
TimB4 (Tennessee)
Posts: 21,059
Posted:
Realistically, selective enforcement (which should not be done) only becomes an issue if a violation enforcement goes to court (as selective enforcement is a defense argument).

If the issue goes to court, the court may do one of the following:

1) Determine selective enforcement was done and dismiss the case

2) Determine selective enforcement was not done and uphold the case.

3) Determine that selective enforcement was done and uphold the case providing the Board enforces the issue on all (and provides proof).

4) Determine that selective enforcement was done, scold the HOA for doing such but rule the violation must be rectified.

5) Determine that the failure to enforce equally voids the enforcement of that section for all.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?

NO...NO...
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By JohnC46 on 10/19/2019 8:54 AM
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


NO...NO...

Then how would you know the veracity of the homeowner's claim? Anyone can claim that.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By NpB on 10/19/2019 9:04 AM
Posted By JohnC46 on 10/19/2019 8:54 AM
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


NO...NO...


Then how would you know the veracity of the homeowner's claim? Anyone can claim that.

You wouldn't, and you still wouldn't even if you saw their tax returns. Which is a practical reason for not even considering it as an excuse.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By CathyA3 on 10/19/2019 9:06 AM
Posted By NpB on 10/19/2019 9:04 AM
Posted By JohnC46 on 10/19/2019 8:54 AM
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


NO...NO...


Then how would you know the veracity of the homeowner's claim? Anyone can claim that.


You wouldn't, and you still wouldn't even if you saw their tax returns. Which is a practical reason for not even considering it as an excuse.

If 90% of people are going to use that excuse to try to get out of a fine, how do know if they are telling the truth? In order to be fair and not accused of selective enforcement (believing one person and not another), wouldn't you have to believe everyone, even if they are lying?

What other document besides tax returns would you suggest for proving financial hardship? Tax returns are used to qualify for federal and state aid programs. Why wouldn't they be used in this situation?
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By NpB on 10/19/2019 9:14 AM
Posted By CathyA3 on 10/19/2019 9:06 AM
Posted By NpB on 10/19/2019 9:04 AM
Posted By JohnC46 on 10/19/2019 8:54 AM
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


NO...NO...


Then how would you know the veracity of the homeowner's claim? Anyone can claim that.


You wouldn't, and you still wouldn't even if you saw their tax returns. Which is a practical reason for not even considering it as an excuse.


If 90% of people are going to use that excuse to try to get out of a fine, how do know if they are telling the truth? In order to be fair and not accused of selective enforcement (believing one person and not another), wouldn't you have to believe everyone, even if they are lying?

What other document besides tax returns would you suggest for proving financial hardship? Tax returns are used to qualify for federal and state aid programs. Why wouldn't they be used in this situation?

I wouldn't consider it at all. HOAs are not charitable organizations, so whatever is used by aid programs is irrelevant.

Even if a board wanted to consider such things, they are not qualified to evaluate people's financial situations. Sadly, there are plenty of folks living in McMansions and earning big bucks who are living paycheck to paycheck and are one lost job away from financial disaster. There are also plenty of folks living in modest housing and earning modest salaries who are also sitting on a pile of money.

So... you either decide to consider "financial hardship", knowing that you will be lied to and that you'll have no clue about who's lying, or you decide not to. If the former, you may as well eliminate fines altogether as a motivator. Otherwise, consider the message you'll be sending to the honest, responsible owners in the community. Whatever behavior you reward, that's the behavior you'll get.

NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By CathyA3 on 10/19/2019 9:34 AM
Posted By NpB on 10/19/2019 9:14 AM
Posted By CathyA3 on 10/19/2019 9:06 AM
Posted By NpB on 10/19/2019 9:04 AM
Posted By JohnC46 on 10/19/2019 8:54 AM
Posted By NpB on 10/19/2019 1:41 AM
Posted By NpS on 10/18/2019 9:22 AM
There are folks in my HOA who will make an exterior change without prior approval.

There are folks who will ask for prior approval - but when they get turned down, they will troll the entire neighborhood looking for things that, in their opinion, should never have been approved. "If you approved something like that, there's no way you should turn me down for what I want. Selective enforcement. Blah blah blah."

There are folks with attitude - "Fine me all you want. I'm never going to pay and you're never going to collect."

On the other side, there are Board members like NpB describes who want to fine every infraction, but are total wimps when it comes to collecting those fines.

Things we've done to improve (but never actually fix) this jumble of mishmash opinions and attitudes that comes with communal living:

- Get the Board to acknowledge that exceptions should never be one-offs. Every exception must be understood as a variance. And every variance must have standards. "We're allowing X because of Y." Example. We don't allow invisible fences. But we had an elderly homeowner who could no longer walk his dogs. We allowed a variance - He needed to provide paperwork from his dogs' vet annually that provided certain information. In other words, we made sure that any homeowner who challenged this variance understood that it was thought through and limited to a unique set of conditions that would not apply to just anyone.

- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

- Try not to turn certain things over to homeowners in order to save cost. For example, homeowners are responsible for exterior maintenance, but the HOA is responsible for painting. A bit of a pain because some homeowners drag their feet on pre-painting repairs. It has been suggested many times that we make homeowners responsible for painting. But that wouldn't fix the underlying problem - Those who delay repairs will also delay painting.

- Bad apples. We have some people who are belligerent toward the Board, and also belligerent to their neighbors. We aren't as aggressive in enforcing - largely because there's a potential safety risk. Right now, we are working on differentiating between stuff that the Board should handle and stuff that the Board should avoid. These are hard decisions since there are many homeowners who think it's the Board's responsibility to "fix" every problem that comes up. Not realistic in today's environment.

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.


I like the example about asking for paperwork from a homeowner to prove a certain argument. If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


NO...NO...


Then how would you know the veracity of the homeowner's claim? Anyone can claim that.


You wouldn't, and you still wouldn't even if you saw their tax returns. Which is a practical reason for not even considering it as an excuse.


If 90% of people are going to use that excuse to try to get out of a fine, how do know if they are telling the truth? In order to be fair and not accused of selective enforcement (believing one person and not another), wouldn't you have to believe everyone, even if they are lying?

What other document besides tax returns would you suggest for proving financial hardship? Tax returns are used to qualify for federal and state aid programs. Why wouldn't they be used in this situation?


I wouldn't consider it at all. HOAs are not charitable organizations, so whatever is used by aid programs is irrelevant.

Even if a board wanted to consider such things, they are not qualified to evaluate people's financial situations. Sadly, there are plenty of folks living in McMansions and earning big bucks who are living paycheck to paycheck and are one lost job away from financial disaster. There are also plenty of folks living in modest housing and earning modest salaries who are also sitting on a pile of money.

So... you either decide to consider "financial hardship", knowing that you will be lied to and that you'll have no clue about who's lying, or you decide not to. If the former, you may as well eliminate fines altogether as a motivator. Otherwise, consider the message you'll be sending to the honest, responsible owners in the community. Whatever behavior you reward, that's the behavior you'll get.


If you give everyone a pass on fines because they use the "magic words" of financial hardship, even though you have no idea of their veracity, then word will get around that the Board is lax on enforcement and behavior won't change.

I think tax returns are the non costly only way to verify whether someone is telling the truth about financial hardship. It is impractical for the HOA to pay an attorney for the equivalent of a judgment debtors exam, where someone has to reveal all their assets and liabilities. The other HOA's are private corporations and corporations are free to use whatever verification processes they wish.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
As NPS said:

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
NpB

You might also consider drug tests, breathalyzers, ID numbers tattooed on owner's arms, armed guards, roving dog patrols, a 16 ft wall, etc.

You are carrying this to far. You are beginning to sound power hungry.

CathyA3 (Ohio)
Posts: 6,299
Posted:
>> I think tax returns are the non costly only way to verify whether someone is telling the truth about financial hardship. It is impractical for the HOA to pay an attorney for the equivalent of a judgment debtors exam, where someone has to reveal all their assets and liabilities. The other HO re private corporations and corporations are free to use whatever verification processes they wish. <<

Just to show how misguided this is:

I know a fella. Multi-multi-multi millionaire. Retired in his 30s. Has arranged his investment portfolio to minimize his taxable income. He qualifies for the maximum subsidy under the Affordable Care Act (meaning he makes less than $00% of the Federal poverty level).

I'm certain that he would claim financial hardship, if he lived in your community and happened to be fined. 'Cause he's that kinda guy. And you'd approve the waiver, since on paper he appears to have modest means.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By CathyA3 on 10/19/2019 11:15 AM
>> I think tax returns are the non costly only way to verify whether someone is telling the truth about financial hardship. It is impractical for the HOA to pay an attorney for the equivalent of a judgment debtors exam, where someone has to reveal all their assets and liabilities. The other HO re private corporations and corporations are free to use whatever verification processes they wish. <<

Just to show how misguided this is:

I know a fella. Multi-multi-multi millionaire. Retired in his 30s. Has arranged his investment portfolio to minimize his taxable income. He qualifies for the maximum subsidy under the Affordable Care Act (meaning he makes less than $00% of the Federal poverty level).

I'm certain that he would claim financial hardship, if he lived in your community and happened to be fined. 'Cause he's that kinda guy. And you'd approve the waiver, since on paper he appears to have modest means.

Argh - typos. He makes less than 400% of the federal poverty level. On paper, anyway.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By JohnC46 on 10/19/2019 10:50 AM
NpB

You might also consider drug tests, breathalyzers, ID numbers tattooed on owner's arms, armed guards, roving dog patrols, a 16 ft wall, etc.

You are carrying this to far. You are beginning to sound power hungry.


I think you are taking my comment about verification out of context. How do you verify an excuse?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 10/18/2019 12:59 AM
Would I be correct in mentioning that if you give appeasements to Homeowner X, you better give it to me or not fine me, or else I or another homeowner who don't receive the same treatment for the same situation will go to the department of real estate and file a case for selective enforcement?


From my reading about what statutes require the Arizona Department of Real Estate to do by way of adjudicating HOA disputes, you are correct. As interested, see https://www.azre.gov/HOA/HOA.aspx
The ADRE even keeps stats. I found the stats showing promise that this may be an avenue for a bit of justice now and then. See attachment or https://www.azre.gov/hoa/documents/HOA_Dispute_Process_Stats.pdf.

Else I think the principal logical argument against "selective enforcement" probably requires a superior education in the liberal arts; the basis for having a legal system at all; equal protection of the laws; and so on. I think the notions are probably beyond 95% of board members' capabilities. Lastly, in the last several decades I think families teaching their children that blind loyalty (the law be damned) is the path to success has become pretty common.
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AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 10/19/2019 1:41 AM
If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


Suppose there is hard evidence that the homeowner is in extreme poverty and cannot keep the home up to the standards the governing documents require. This would be governing documents the homeowner knew about when she or he bought into the HOA. Does this mean the Board is obliged to let the home stay in disrepair and let the neighborhood go downhill?

I think fiduciary duty says just the opposite. I suppose the Board could, and maybe should, work with the impoverished homeowner by way of giving her or him a reasonable timeframe to make the repairs. But at some point, I think fiduciary duty to the governing documents and membership require the HOA to step in; make the needed repairs (if the governing documents allow); and lien the home for the cost of repairs. If the HOA's making the repairs is not allowed, fine the member, lien the home, and so on.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By AugustinD on 10/19/2019 12:05 PM
Posted By NpB on 10/19/2019 1:41 AM
If a homeowner claims that the cost to repaint a trim color or the fine will cause an undue financial hardship, would it be appropriate to ask for tax returns to prove it?


Suppose there is hard evidence that the homeowner is in extreme poverty and cannot keep the home up to the standards the governing documents require. This would be governing documents the homeowner knew about when she or he bought into the HOA. Does this mean the Board is obliged to let the home stay in disrepair and let the neighborhood go downhill?

I think fiduciary duty says just the opposite. I suppose the Board could, and maybe should, work with the impoverished homeowner by way of giving her or him a reasonable timeframe to make the repairs. But at some point, I think fiduciary duty to the governing documents and membership require the HOA to step in; make the needed repairs (if the governing documents allow); and lien the home for the cost of repairs. If the HOA's making the repairs is not allowed, fine the member, lien the home, and so on.

Excellent post and recommendation for the situation you describe.

I was referring to a situation where for example, per the Architectural Guidelines, all houses must be painted red, with a blue trim. Homeowner requests a variance to paint a yellow trim. Board denies request. Homeowner defies the decision and paints the trim yellow. Board sends a warning letter to correct by a certain date. Homeowner fails to do so. Board fines homeowner. Homeowner claims the Board made a bad decision by not allowing the variance and claims fine and the cost to repaint will cause financial hardship.

I say PROVE the financial hardship with financial documents, otherwise how is the Board supposed to verify the excuse.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 10/19/2019 2:36 PM
Homeowner claims the Board made a bad decision by not allowing the variance and claims fine and the cost to repaint will cause financial hardship.

I say PROVE the financial hardship with financial documents, otherwise how is the Board supposed to verify the excuse.


I have never seen governing documents that say covenants may be disregarded on account of financial hardship on the part of a member. Nor do I recall ever reading any HOA case law where a HOA member claimed financial hardship as a justification for their actions; as a defense; or similar.

I think volunteer board members are not paid enough to warrant their doing things that fall outside of the governing documents.
KerryL1 (California)
Posts: 14,550
Posted:
I, too, don't believe that "financial hardship" is a valid excuse for not complying with the governing documents.

Our governing documents give the Board the authority to correct, say, filthy or deteriorated balcony surfaces (violates our covenants and rules) that can be viewed from the exterior, and, after due process, e.g., a hearing, etc., bill the Owner an "enforcement assessment," the cost to repair.

One option, if the board believes there is financial hardship, is to place the Owner on a payment plan as HOAs often do when Owners fall behind on their dues.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Forgiving monetary penalties due to financial hardship is one thing.
I see no issue with that.

Authorizing reasonable delays to the repair/maintenance due to financial hardship is also understandable.

Outright lack of enforcement shouldn't be done.

From the comments, I think many have forgotten what it's like living paycheck to paycheck.
When my father died, my mother had financial hardships and finally had to declare bankruptcy.
When my father in law died, my mother in law had financial hardships and everyone pitched in where they could.

Things happen that can cause financial hardships.
Sometimes those things are short term.
Other times, say prolonged medical issues, these can be long term.
When things happen, many other things are placed on the back burner to deal with the issue at hand.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
I am retired and on a fixed income, I cannot afford this. Never mind the income is $10,000.00 per month and they own the unit.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By JohnC46 on 10/19/2019 5:05 PM
I am retired and on a fixed income, I cannot afford this. Never mind the income is $10,000.00 per month and they own the unit.

Wouldn't a tax return reveal the situation you describe?
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By NpS on 10/18/2019 9:22 AM
- We don't budget for fines or late fees. Whatever gets collected is gravy - it goes into reserves. Our policy is that the Board can waive fines but never assessments. The degree to which fines are waived depend on individual circumstances like loss of job or willingness to remedy a deficiency. After all, the goal is to get people on board with the program, not penalize people for every infraction. Is there favoritism - Sure, can't be avoided. But there are 5 different decision makers involved - and that provides some level of consistency. "Why are we waiving this?" must always be asked and answered.

I am surprised and not surprised that, in a fairly densely packed and lengthy post, this is the paragraph that got most of the attention.

As a small, self-managed townhouse community, we know what's going on in our community. We don't get owners coming to us asking for waivers.

But we do know when residents start hospice. Or when a close family member dies. Of when the Fed furloughs workers and our government-employee residents are affected. In our opinion, these folks don't need to get late fees on top of the personal stress they're already experiencing. I remember an owner whose husband died and she didn't pay fees for 3 months. She was so embarrassed. Never late in 15 years. Was our BOD going to collect late fees - The decision was no - But for a very specific reason - including the fact that she had always been on time before this. She was incredibly appreciative that we dealt with her the way we did.

Some posters said that we should get proof. But we would never put anyone through that kind of embarrassment. Things do happen and the BOD needs to decide how to handle them. For example, more people are aging in place instead of moving on to some kind of assisted living arrangement. Some get forgetful, and at some point, we find ourselves asking family members to step in. These are difficult conversations. Often stressful. And fines would only make it harder to find a positive solution. We don't want to get in the middle, but we don't want to ignore potential risks to our residents.

As far as folks who are chronically late are concerned, late fees aren't waived under any circumstances. Do I think that's selective. In a way yes, but not really. We have flexibility for the rare event that disrupts people's lives, but not for the chronic problems.
Sikubali jukumu. Read all posts at your own risk.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By NpB on 10/19/2019 9:04 PM
Posted By JohnC46 on 10/19/2019 5:05 PM
I am retired and on a fixed income, I cannot afford this. Never mind the income is $10,000.00 per month and they own the unit.


Wouldn't a tax return reveal the situation you describe?

Not necessarily (see my previous example of the multi-millionaire who gets taxpayer funded subsidies to purchase health insurance through the Affordable Care Act). There are many legal ways to reduce your taxable income, and unless your board is skilled at analyzing tax returns, they won't understand what they're looking at. Besides which, a tax return is a snapshot of the previous year, and financial situations can change dramatically from year to year.

That's been the whole argument all along. A tax return doesn't tell you what you believe that it does. It's a piece of the puzzle that can be and often is misleading, and you're missing all of the other pieces that may give you an idea of what the return could possibly mean (such as financial and non-financial assets, what form they take, and expenses including debt service). Two people can have identical situations on paper, and one of them could be in deep trouble while the other one is humming merrily along.

Not to mention that it's intrusive. I can just hear our attorneys' reaction if we asked for tax returns: "Are you people trying to get sued?!?!" Probably not in those exact words, but that would be the gist of it.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The HOA has no need or rights to a Tax Return nor a Social Security #. Do not think a HOA should be involved in one's finances. You either pay dues or you don't. You either need to do repairs or the HOA can do it for you. Of course the HOA doing it means putting a lien for the expense if you do not pay.

I am not responsible for if you can pay. My responsibility is to make sure you comply with the rules.
Former HOA President
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By TimB4 on 10/19/2019 4:57 PM
Forgiving monetary penalties due to financial hardship is one thing.
I see no issue with that.

Authorizing reasonable delays to the repair/maintenance due to financial hardship is also understandable.

Outright lack of enforcement shouldn't be done.

From the comments, I think many have forgotten what it's like living paycheck to paycheck.
When my father died, my mother had financial hardships and finally had to declare bankruptcy.
When my father in law died, my mother in law had financial hardships and everyone pitched in where they could.

Things happen that can cause financial hardships.
Sometimes those things are short term.
Other times, say prolonged medical issues, these can be long term.
When things happen, many other things are placed on the back burner to deal with the issue at hand.


When wearing a director's hat, with a legal duty to the corporation and its members, the problem I have, in some situations, is explaining the waiving of xyz fee to the membership.

The alternative is waiving xyz fee in secret. Subsequently there's the 'oh what a tangled web we weave, when first we... " fallout with which to contend.

Businesses do waive certain charges such as late fees all the time, for the sake of good customer relations, and on a case-by-case basis where say hardship has been identified. I support this.

When wearing my neighbor's hat, I hope all step up to offer a helping hand when things get difficult for one's neighbor, the elderly, the disabled, and so on. Bake a casserole; change out a car's windshield washer pump; remove a dead tree; drive the person to see the doctor or get groceries; and so on. For the Right-leaning among us, I think studies may show that such neighborliness improves a HOA's reputation and increases home values.

I suppose it's often not black-and-white. It's more like "I know selective enforcement when I see it... "
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By AugustinD on 10/20/2019 6:48 AM
Posted By TimB4 on 10/19/2019 4:57 PM
Forgiving monetary penalties due to financial hardship is one thing.
I see no issue with that.

Authorizing reasonable delays to the repair/maintenance due to financial hardship is also understandable.

Outright lack of enforcement shouldn't be done.

From the comments, I think many have forgotten what it's like living paycheck to paycheck.
When my father died, my mother had financial hardships and finally had to declare bankruptcy.
When my father in law died, my mother in law had financial hardships and everyone pitched in where they could.

Things happen that can cause financial hardships.
Sometimes those things are short term.
Other times, say prolonged medical issues, these can be long term.
When things happen, many other things are placed on the back burner to deal with the issue at hand.


When wearing a director's hat, with a legal duty to the corporation and its members, the problem I have, in some situations, is explaining the waiving of xyz fee to the membership.

The alternative is waiving xyz fee in secret. Subsequently there's the 'oh what a tangled web we weave, when first we... " fallout with which to contend.

Businesses do waive certain charges such as late fees all the time, for the sake of good customer relations, and on a case-by-case basis where say hardship has been identified. I support this.

When wearing my neighbor's hat, I hope all step up to offer a helping hand when things get difficult for one's neighbor, the elderly, the disabled, and so on. Bake a casserole; change out a car's windshield washer pump; remove a dead tree; drive the person to see the doctor or get groceries; and so on. For the Right-leaning among us, I think studies may show that such neighborliness improves a HOA's reputation and increases home values.

I suppose it's often not black-and-white. It's more like "I know selective enforcement when I see it... "

I mostly agree with Tim and Augustin. However, to play devil's advocate, nowhere in any governing documents that I've seen has it ever been stated that owners may be required to subsidize neighbors who are having financial difficulties. It's implied, but not stated outright.

Given the amount of disclosure required for real estate transactions, I think this is a big oversight. Understandable, though: the Realty Industrial Complex doesn't want anything that may stop people from buying homes.

I can't think of any other corporate structure where owners have to subsidize each other this way. This is very different from businesses that waive fees for customers, since association members are owners, not customers. (People who own shares of stock or a business who run into financial trouble have to sell their assets. They don't ask their fellow share holders to keep them afloat for awhile, although I suppose such things can happen in family-owned businesses.)

NpB (Arizona)
Posts: 605
Posted:
If you lived in a small HOA where neighborhood relations are poor and irreparable without the help of an organizational psychologist and to where owners have been conditioned for years that there are little to no consequences for not following rules and appeasement rampant in order to maintain a pseudo harmony, it's a tall order when a different ideology Board gets elected and a management company hired to truly run it like a corporation.

Now having written that, it is a shock for many owners and some Board members not used to an enforce the rules culture. What message does it send it you appease a defiant to the rules homeowner? Owners want strict rules and guidelines, but then want a pass when they don't obey them and past Boards went soft on them to maintain a pseudo harmony and not to offend.

What a waste of time to have fined someone, then the owner appeals makes a likely false excuse of financial hardship and the Board caves in based on emotion because they are too afraid to ask for proof. Hence my original post in wanting to say, ok, I will be painting my trim green too and if you don't accept my excuse of financial hardship that you just believed with this owner with no proof, then I will file a case with the Dept of Real Estate. How is that going to sound from a Board member in front of the offender, Board and Management company rep?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By CathyA3 on 10/20/2019 7:44 AM
I can't think of any other corporate structure where owners have to subsidize each other this way. This is very different from businesses that waive fees for customers, since association members are owners, not customers. (People who own shares of stock or a business who run into financial trouble have to sell their assets. They don't ask their fellow share holders to keep them afloat for awhile, although I suppose such things can happen in family-owned businesses.)


You're one of my go-to posters, CathyA3. Your point is well-stated and well-taken.

I'll chime in that, when our friends at say Visa (stock symbol: V) waive a late fee for a customer, in the short term they are taking money away from corporate profits; the dividends et cetera of its shareholders; et cetera. For the long term, though, Visa keeps the customer and presumably profits more.

On the other hand, the waiving of such late fees is typically done in a phone conversation with the customer probably hundreds of miles away from the Visa phone representative. Selective enforcement of the Visa contract's terms seems unlikely to happen.

I think I would be looking for wording in a HOA's governing documents that says something like, "The HOA may impose late fees... " It's not mandatory. The "may" suggests some discretion allowed.

On the third hand, I recall a certain former HOA president where I once lived 'settling' with various HOA members who owed tens of thousands dollars, on account of many years of not paying asssessments. The HOA president typically okayed settling for the original assessment amount without late fees or interest. He thought it was so cool that a few thousand dollars per member was suddenly available to the HOA, at a cost of several thousand dollars. I was roiled. I favored just placing liens. The house would eventually sell, and the money would be paid back just prior to sale, with late fees and interest.

I guess I'd just say that I want a payment plan in place for all who owe back assessments or similar, and would have some flexibility depending on the circumstances for waiving late fees and fines, especially if the HOA was not allowed to lien for late fees and fines.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By NpB on 10/19/2019 9:04 PM
Posted By JohnC46 on 10/19/2019 5:05 PM
I am retired and on a fixed income, I cannot afford this. Never mind the income is $10,000.00 per month and they own the unit.


Wouldn't a tax return reveal the situation you describe?

No it would not. Tax returns do not show expenses. Let us say the couple with $10K monthly are keeping several parents in a nursing home to the to the tune of $8K per month.

Tax returns are private. You are not Big Brother......
CathyA3 (Ohio)
Posts: 6,299
Posted:
One thing I've noticed: we've been talking about waiving both assessments and fines. My understanding is that assessments are basically engraved in stone (ie. the governing documents) and the board has no authority to waive them. They would have to classify unpaid assessments as bad debt and carry it on the books or write it off at some point. But it can't just disappear. For fines, though, the board may have more discretion, depending on the wording in their docs.

(Our governing docs treat fines as assessments, which means that we can lien and foreclose based on them. However, we never budget with any expectation of income from fines. I think this is one area where an association could get into trouble if it tried to waive assessments - it would find themselves unable to pay the bills. So there are pragmatic reasons not to do so, in addition to the questionable legality of it.)
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By CathyA3 on 10/20/2019 9:47 AM
One thing I've noticed: we've been talking about waiving both assessments and fines. My understanding is that assessments are basically engraved in stone (ie. the governing documents) and the board has no authority to waive them. They would have to classify unpaid assessments as bad debt and carry it on the books or write it off at some point. But it can't just disappear. For fines, though, the board may have more discretion, depending on the wording in their docs.

(Our governing docs treat fines as assessments, which means that we can lien and foreclose based on them. However, we never budget with any expectation of income from fines. I think this is one area where an association could get into trouble if it tried to waive assessments - it would find themselves unable to pay the bills. So there are pragmatic reasons not to do so, in addition to the questionable legality of it.)

I agree assessments/dues cannot be waived as our docs say they must all be equal. Fines, late payment fees, etc. the BOD can waive/reduce.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By JohnC46 on 10/19/2019 10:46 AM
As NPS said:

It's always a moving target because with every change in the composition of the Board, the standards of how to deal with neighborhood disruption needs to be discussed and reset. We spend a lot more time than we used to talking about standards for variations and safety than we ever did. I think we're better off because of it.

Thanks for emphasizing these points John. We never satisfy everyone, but focusing on safety and standards is always a good thing IMO. Too often in the past, we got lost in the weeds.
Sikubali jukumu. Read all posts at your own risk.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By NpB on 10/19/2019 9:04 AM
Then how would you know the veracity of the homeowner's claim? Anyone can claim that.

Exactly. That's why you shouldn't even consider it.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By GenoS on 10/20/2019 4:03 PM
Posted By NpB on 10/19/2019 9:04 AM
Then how would you know the veracity of the homeowner's claim? Anyone can claim that.

Exactly. That's why you shouldn't even consider it.

I'm a little confused. Do you mean a Board should automatically dismiss that excuse because anyone can claim it?

Then the Board is back to needing some sort of written verification from the offender (who outwardly does not project having a significant financial hardship) to back up the claim. I can just see this meeting getting very personal, with one Board member saying "Well, if I paint my trim color a non-approved color and come before this Board, I will claim the fine is a significant financial hardship too." Another Board member will reply "You drive a new car and you have a good paying job, so we wouldn't believe you." I would respond with "Well why did you believe the offender without proof. It's not good business judgement."

Yes, it is personal and private to reveal your tax returns, bank statement, mortgage debt, credit card debt, etc.., to prove your case, but just think of the bias if you don't ask and people believe one offender vs another just based on outward appearance, emotion, etc..
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By NpB on 10/21/2019 12:18 AM
I'm a little confused. Do you mean a Board should automatically dismiss that excuse because anyone can claim it?

I'm saying it should be ignored. Gauging financial hardship to determine who is worthy of special treatment and who is not shouldn't figure into any decisions. As soon as you raise the issue that Mr. X won't be able to afford next year's assessment increase, you're already treating everyone else unfairly.
NpS (Pennsylvania)
Posts: 4,216
Posted:
I don't think that "financial hardship" is an appropriate measure.

We used to charge $10 late fees. But other providers charged $25. So people would pay the bills that had $25 fees first, and leave us hanging. So we raised our fees to $25 to keep from being last in line.

Yet, $25 is an exorbitant amount to charge, especially when interest rates are so low.

Our dividing line between which late fees get waived and which ones don't is as follows:

1. Chronic late payers always get charged.
2. Rare late payers can get fees waived when they have a unique circumstances like death in the family or government shutdown.

Those in group one present the highest risk, and IMO, they are not being discriminated against.

Those in group two are low risk, and if they don't get caught up, fees don't get waived - because they get classified as chronic.

Now you might say this is discriminatory. But I don't, especially in a small HOA.

IMO, having compassion without standards to follow is discriminatory. Having compassion within standards is not.

When it comes to rules, there is no perfect situation where everyone gets treated exactly the same way. That's pie in the sky thinking. Not everyone who speeds on the highway gets a speeding ticket even though they can easily calculate how fast you're going based on your transponder signal getting picked up. If that happened, people would be up in arms. Same is true for HOAs. Even if you could catch every violation, not sure your community would accept living in such a harsh community.
Sikubali jukumu. Read all posts at your own risk.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Forgot to mention. We have a 3rd rule. Applies to everyone.

Late fees are not applied until someone owes more than 1 1/2 times monthly fees.

So essentially, people can be 6 weeks late before fees are charged.

When they do get charged, there are no excuses.

Sikubali jukumu. Read all posts at your own risk.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By NpS on 10/23/2019 12:53 PM
Forgot to mention. We have a 3rd rule. Applies to everyone.

Late fees are not applied until someone owes more than 1 1/2 times monthly fees.

So essentially, people can be 6 weeks late before fees are charged.

When they do get charged, there are no excuses.


I think once you enforce fines for a homeowner and not for another homeowner for the same infraction, a Board runs the risk of being sued for selective enforcement.
NpB (Arizona)
Posts: 605
Posted:
Cannot understand why Boards in general are so afraid to enforce rules and fines. They believe that being nice and easy on people will create a harmony, when in essence it is a pseudo-harmony because owners know the Board is weak and will take a mile in complying with rules, since there are no consequences.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Wow. No it isn't like that at all. HOA's are NOT "They and Them". It is "YOU and your NEIGHBORS". Exactly how do you think they are to enforce rules or fines? Spread "magic dust" and Poof?

Fines don't necessarily have any "teeth". Many states do not allow fines to be subject to turn into liens/foreclosure. Meaning you can't place a lien/foreclosure based on fines on a house. It's got to be dues only. However, there is a caveat that a HOA may fix the violation under their dime and send the owner the bill. The owner refuses to pay the HOA can lien for that but not foreclose. Fines also have to be legal to be applied.

So unless there are some kind of enforcement practices out there I'd like to know what they are. They can be very limited per the law. Doesn't mean don't exist. It's just not black and white as one may assume.
Former HOA President
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By NpB on 10/23/2019 7:49 PM
Posted By NpS on 10/23/2019 12:53 PM
Forgot to mention. We have a 3rd rule. Applies to everyone.

Late fees are not applied until someone owes more than 1 1/2 times monthly fees.

So essentially, people can be 6 weeks late before fees are charged.

When they do get charged, there are no excuses.



I think once you enforce fines for a homeowner and not for another homeowner for the same infraction, a Board runs the risk of being sued for selective enforcement.

Under this rule, everyone IS treated the same. If you owe more than a certain amount, you pay a late fee. If you owe less, you don't pay a late fee. Don't see how you think we're at risk of a selective enforcement lawsuit.
Sikubali jukumu. Read all posts at your own risk.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By NpB on 10/23/2019 7:55 PM
Cannot understand why Boards in general are so afraid to enforce rules and fines. They believe that being nice and easy on people will create a harmony, when in essence it is a pseudo-harmony because owners know the Board is weak and will take a mile in complying with rules, since there are no consequences.

Sometimes a carrot works better than a stick. Sometimes the other way around. Each association needs to find what works for them in a particular situation.

For us, we have the added issue of being self-managed. There's no intermediary between the homeowner and the BOD members. Enforcement is much easier when there's a buffer. Then again, many of the financial remedies are toothless.
Sikubali jukumu. Read all posts at your own risk.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By NpS on 10/23/2019 10:46 PM
Posted By NpB on 10/23/2019 7:55 PM
Cannot understand why Boards in general are so afraid to enforce rules and fines. They believe that being nice and easy on people will create a harmony, when in essence it is a pseudo-harmony because owners know the Board is weak and will take a mile in complying with rules, since there are no consequences.


Sometimes a carrot works better than a stick. Sometimes the other way around. Each association needs to find what works for them in a particular situation.

For us, we have the added issue of being self-managed. There's no intermediary between the homeowner and the BOD members. Enforcement is much easier when there's a buffer. Then again, many of the financial remedies are toothless.

We used to be self managed and past Boards would look the other way and appease in order to foster a pseudo harmony. The Board would create guidelines about outdoor pots for example and then look the other way when there was a violation. Lax enforcement of no overnight street parking (written in CC&Rs) and when I brought up having an election to repeal that provision in CC&Rs, majority of Board said they liked that rule. Endless circle.

HOA is now newly professionally managed with a new Board and some old timers are now in shock at receiving warning letters and fines.

In my state, you can get a court judgment for an unpaid fine. I do not know if you can place a lien on a property for an unpaid fine, but if so, that is a good tool.

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