does the US constitution protections against double jeopardy apply to HOAs?

MichaelT21 (Arkansas)
Posts: 462

Posted:

We have an issue where we sent a compliance letter to a homeowner about an issue. Unknown to us until yesterday, the owner had previously received a fine for the same basic issue several years ago, which they paid, and they corrected the issue per the Board direction at the time. Unfortunately, the Board direction a couple years ago did not fully resolve the issue, which we have rediscovered this summer.

To me, the idea of sending a compliance letter and asking for additional corrections for a homeowner who had previously received a fine and already made Board-approved corrections, smells of double jeopardy which is a violation of the 5th amendment of the constitution. Thus, I'm thinking that even though the issue was not properly corrected per the 2022 Board, the fact that a previous Board had agreed that the corrections made years ago were satisfactory, is something that we have to accept today.

For privacy, I can't be more specific. The general question is "does the US constituion protections against double jeopardy apply to HOAs?"

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Why would this be double jeopardy? I think you don't understand what that means. Plus you can keep getting fined for the same thing over and over again even if you correct it. At some point your HOA has to decide it's no longer a violation and accept it or keep fining to correct it.

Former HOA President

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By MelissaP1 on 09/07/2022 4:40 AM
Why would this be double jeopardy? I think you don't understand what that means. Plus you can keep getting fined for the same thing over and over again even if you correct it. At some point your HOA has to decide it's no longer a violation and accept it or keep fining to correct it.

I'm saying that the owner received a compliance letter and took actions to correct it, which the previous Board was satisfactory. Now the current Board reviewed the work and discovered something new that was improper. Can we force the homeowner to make additional changes when the previous Board already confirmed that the actions taken to correct it were sufficient and the issue was closed?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Well, there's the obvious answer that if it did, then wouldn't people have tried that dodge already and wouldn't all of the CC&Rs out there have been declared unconstitutional?

As far as I know, double jeopardy refers to criminal acts, and that's not what we're dealing with in HOAs for the most part. If your association went after someone for embezzlement or other criminal acts, then yes I think double jeopardy would apply. If you're talking about run-of-the-mill violations of restrictions, then no.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Well then it is a new violation. Not all of it was corrected.

Cathy is right. Double Jeopardy applies to criminal acts. It does not apply in a HOA. It is pretty spelled out what constitutes as a violation. Which can be multifaceted.

Former HOA President

DouglasK1 (Florida)
Posts: 2,046

Posted:

It's been decades since I had a civics class, but my understanding is that the bill of rights generally provides protections against government action, not private parties such as an HOA.

Escaped former treasurer and director of a self managed association.

MichaelT21 (Arkansas)
Posts: 462

Posted:

This is a made up example, but similiar:

Say HOA has rule that says no purple houses and must use Brand X of paint.

Homeowner paints house in purple with brand Y. Neighbor turns them in, Board investigates, and concurs that Brand Y paint was used, which is a violation. Requires homeowner to repaint house (same color) with Brand X. Board reviews, approves completed work.

5 years later, new Board notices purple house. Sends compliance letter asking homeowner to repaint house a second time with a different color.

To me, that is double jeopardy. The time to address the color was when the house was first repainted. Since it was not addressed and the first repainting was approved by the board and resolved the issue, it seems to me that later boards have to honor that house painting job as Board approved.

Am I wrong? It it correct that we can make them repaint their house twice, once for the brand of paint and a second time for the color?

Again, made up example but close enough.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

If previous board approved the purple color then I think current board would need to accept that. Home owner submitted and got paperwork approved so she is in the clear. I think new boards trying to relitigate issues that old boards have approved is a major sore spot for many home owners. Boards should try to main as much consistency as possible, publishing board policies on every conceivable topic from drones, to parking to social media to fines, etc so that new boards are aware of old board policies is a step that might help.

vis ta vie

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By MichaelT21 on 09/07/2022 6:23 AM
Say HOA has rule that says no purple houses and must use Brand X of paint.

Homeowner paints house in purple with brand Y. Neighbor turns them in, Board investigates, and concurs that Brand Y paint was used, which is a violation. Requires homeowner to repaint house (same color) with Brand X. Board reviews, approves completed work.

5 years later, new Board notices purple house. Sends compliance letter asking homeowner to repaint house a second time with a different color.

To me, that is double jeopardy. The time to address the color was when the house was first repainted. Since it was not addressed and the first repainting was approved by the board and resolved the issue, it seems to me that later boards have to honor that house painting job as Board approved.

Am I wrong? It it correct that we can make them repaint their house twice, once for the brand of paint and a second time for the color?

Again, made up example but close enough.

"What to do when a prior board approves an ACC request that violates the covenants" comes up a lot here.

This is about contract enforcement. It has nothing to do with criminal law's constitutional protections.

In this particular instance, and now that the current Board wants the house in compliance, I think the best solution is for the board to agree to re-paint the house at the HOA's expense.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By MichaelT21 on 09/07/2022 4:56 AM

Posted By MelissaP1 on 09/07/2022 4:40 AM
Why would this be double jeopardy? I think you don't understand what that means. Plus you can keep getting fined for the same thing over and over again even if you correct it. At some point your HOA has to decide it's no longer a violation and accept it or keep fining to correct it.

I'm saying that the owner received a compliance letter and took actions to correct it, which the previous Board was satisfactory. Now the current Board reviewed the work and discovered something new that was improper. Can we force the homeowner to make additional changes when the previous Board already confirmed that the actions taken to correct it were sufficient and the issue was closed?

The previous board's approval of the corrective action should stand and the current HOA board should not revisit this. I'd argue the board wouldn't win such a case in superior court if it got that far.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By MichaelT21 on 09/07/2022 4:56 AM

Posted By MelissaP1 on 09/07/2022 4:40 AM
Why would this be double jeopardy? I think you don't understand what that means. Plus you can keep getting fined for the same thing over and over again even if you correct it. At some point your HOA has to decide it's no longer a violation and accept it or keep fining to correct it.

I'm saying that the owner received a compliance letter and took actions to correct it, which the previous Board was satisfactory. Now the current Board reviewed the work and discovered something new that was improper. Can we force the homeowner to make additional changes when the previous Board already confirmed that the actions taken to correct it were sufficient and the issue was closed?

The previous board's approval of the corrective action should stand and the current HOA board should not revisit this. I'd argue the board wouldn't win such a case in superior court if it got that far.

KerryL1 (California)
Posts: 14,550

Posted:

I'm thinking it depends on the issue. If it's as petty as Micheal's example, leave it alone. If, in general, the "new" but related issue causes drainage issues or anything that threatens the common areas or neighbor's lots, it seems to me the Board is obliged to act so that the violation is corrected.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MichaelT21 on 09/07/2022 6:23 AM
This is a made up example, but similiar:

Say HOA has rule that says no purple houses and must use Brand X of paint.

Homeowner paints house in purple with brand Y. Neighbor turns them in, Board investigates, and concurs that Brand Y paint was used, which is a violation. Requires homeowner to repaint house (same color) with Brand X. Board reviews, approves completed work.

5 years later, new Board notices purple house. Sends compliance letter asking homeowner to repaint house a second time with a different color.

To me, that is double jeopardy. The time to address the color was when the house was first repainted. Since it was not addressed and the first repainting was approved by the board and resolved the issue, it seems to me that later boards have to honor that house painting job as Board approved.

Am I wrong? It it correct that we can make them repaint their house twice, once for the brand of paint and a second time for the color?

Again, made up example but close enough.

The purple house is not a criminal act, so it's not double jeopardy.

What you're getting at, I think, is the balancing act that's needed for reasonable enforcement of the CC&Rs. Just because the board can do something doesn't mean that it's smart or that there won't be negative repercussions if they do the thing.

If I were on the board now and looking at this, I would say that it's the board's fault that the color wasn't addressed at the time and that making the homeowner repaint a second time is unreasonable. I'd suggest sending the homeowner a notice about the unacceptable paint color, say that the assocaition won't take any action now, but the color must be corrected when it's time to repaint or siding is being replaced.

TimB4 (Tennessee)
Posts: 21,062

Posted:

I'm not sure why you reviewed the work, as you don't clarify.

We don't know what the actual issue is, so specific opinions become generalized.

Your basic question - does double jeopardy apply to HOAs?
The answer, based on my research, is no.

See:

The Prohibition Against Double Jeopardy from Nolo

Fifth Amendment from Cornell Law School

HOA Homefront: Is there double jeopardy for HOA actions, and how to handle the hateful? From a CA newspaper

All of that said, I agree with Kelly, that if the issue went to court the HOA might not win.

My suggestion - have an informal conversation with the owner and see what can be worked out. Perhaps sharing the expense as a compromise.

The other suggestions of leaving it alone could also apply depending on the exact issue.

TimB4 (Tennessee)
Posts: 21,062

Posted:

In your example, which I think is poor, in 5 years the house might need repainting again anyway.

A real life example that happened in my VA HOA - individual painted his house the wrong shade of white (yep - I thought it was stupid too, but happened way before I was on the board). HOA had attorneys involved, etc.
Bottom line - a compromise that when the house was repainted or sold, the proper color would be used.

Lots of money and aggravation spent for any real results (once the paint fades, few can really tell what shade of a color it was).

Hence my suggestion - have an informal talk with the individual without the thought that the HOA is right or wrong - but with the thought of lets work together to resolve the issue.

LetA (Nevada)
Posts: 2,679

Posted:

If the owner corrected the problem and the previous board was satisfied the issue was corrected than THAT'S IT.
If the previous board did not update their records that is on The BOD. IF the owner if contacted by the board for a redress by the current board, all I can say is gird your loins because hell hath no fury
than a homeowner scorn by an inept HOA board.