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Can HOA require homeowners to fix major issues before selling house via rules & regulations?

Started by WendyM5 • 50 replies • 697 views

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WendyM5 (North Carolina)
Posts: 1,522
Posted:
This goes back to my driveway repair question. I'm not sure our board wants to force our current membership to pay $2000-$12,000+ to fix a bad driveway. I am on the board. We have homes that are almost 30 years old and several driveways either need to be resurfaced or have dips and cracks so bad they need to be tore out and at a bare minimum a section needs to be fixed and the rest resurfaced to match or seal coated to match.

As a long term solution can we flag all homes with bad driveways and issue them a special assesment to fix their driveways. That way when the house is sold the HOA can report that the current owner is obligated to fix it and if they don't then the new owner will have to fix it?

vis ta vie
DouglasK1 (Florida)
Posts: 2,046
Posted:
In my last association, we didn't have the ability fine (or at least the long term board members thought we didn't). We issued violation notices that were essentially voluntary since the board wasn't going to sue over the violations.

When a home sold, we did notify the new owners of the violation(s) via the estoppel process, but really didn't enforce compliance.

What are your expectations about how to enforce? Would it be via fines? Whether you can enforce against buyers but not against current owners would be a good question for an attorney, as would be the question about whether this could be done by R&R.
Escaped former treasurer and director of a self managed association.
SheliaH (Indiana)
Posts: 6,964
Posted:
It's one thing to cite homeowners for not maintaining their homes (the subject of your last conversation), but I don't think this special assessment stuff will fly - mostly because special assessments should be for maintaining the common areas, not an area homeowners are responsible for.

If the driveways are really raggedly and the house is up for sale, let the buyer and seller resolve it (it's really not the HOA's business). The buyer may fix the driveway after the seller knocks the expense off the sales price. Or the seller is already working on getting it fixed - due to labor shortages in several areas, it may be the homeowner has spoken to a contractor but has to wait because there are several other projects ahead of him or her. Concrete is also a byproduct of oil, and you know how expensive gas is these days, so you have to expect assorted byproducts to also be expensive, in short supply, or both.

If the new owner doesn't do anything and buys the house anyway, you could cite him or her for not maintaining it properly - they may yell, but they could see or should have seen the driveway had problems, but because they didn't go after the previous homeowner to fix it, this is now their problem. By the way, that's why warning letters are so important - if you can prove the seller had been notified before the house changed hands, it would be up to the new owner to go after the previous one - and that's not the HOA's business either.

As I said in your last conversation, you might try sending the notices to everyone first and see how they respond. If homeowners blow you off, you may be able to file a lawsuit against them in small claims court, depending on the amount of money involved (in addition to repair expenses, you'll want to add the association's legal expenses so it can be reimbursed.) Yes, that will result in some drama, so I hope your board is up for it. Document everything you do, cite your documents accurately, and be fair and consistent with everyone. Even if there's pushback, these efforts can work in the association's favor, and sometimes all it takes is a few wins in court for the homeowners to see the board is serious about enforcing the CCRs. They may turn around and vote you out, but sometimes all the idiots are on the same side.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By SheliaH on 09/12/2022 8:38 AM
It's one thing to cite homeowners for not maintaining their homes (the subject of your last conversation), but I don't think this special assessment stuff will fly - mostly because special assessments should be for maintaining the common areas, not an area homeowners are responsible for.

If the driveways are really raggedly and the house is up for sale, let the buyer and seller resolve it (it's really not the HOA's business). The buyer may fix the driveway after the seller knocks the expense off the sales price. Or the seller is already working on getting it fixed - due to labor shortages in several areas, it may be the homeowner has spoken to a contractor but has to wait because there are several other projects ahead of him or her. Concrete is also a byproduct of oil, and you know how expensive gas is these days, so you have to expect assorted byproducts to also be expensive, in short supply, or both.

If the new owner doesn't do anything and buys the house anyway, you could cite him or her for not maintaining it properly - they may yell, but they could see or should have seen the driveway had problems, but because they didn't go after the previous homeowner to fix it, this is now their problem. By the way, that's why warning letters are so important - if you can prove the seller had been notified before the house changed hands, it would be up to the new owner to go after the previous one - and that's not the HOA's business either.

As I said in your last conversation, you might try sending the notices to everyone first and see how they respond. If homeowners blow you off, you may be able to file a lawsuit against them in small claims court, depending on the amount of money involved (in addition to repair expenses, you'll want to add the association's legal expenses so it can be reimbursed.) Yes, that will result in some drama, so I hope your board is up for it. Document everything you do, cite your documents accurately, and be fair and consistent with everyone. Even if there's pushback, these efforts can work in the association's favor, and sometimes all it takes is a few wins in court for the homeowners to see the board is serious about enforcing the CCRs. They may turn around and vote you out, but sometimes all the idiots are on the same side.

thanks not sure if other board members are up for drama so I was hoping to basically kick the can down the road and make any new owner fix the issue as to not piss off currnet owners with very expensive repairs. The problem with many buyers is they would rather spend $12,000+ on something else. The driveway although crappy looking is still functional and most damage is not near sidewalks so not a public tripping liability.
vis ta vie
MichaelT21 (Arkansas)
Posts: 462
Posted:
In general, HOAs do not the ability to block the sale of private property.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By DouglasK1 on 09/12/2022 8:36 AM
In my last association, we didn't have the ability fine (or at least the long term board members thought we didn't). We issued violation notices that were essentially voluntary since the board wasn't going to sue over the violations.

When a home sold, we did notify the new owners of the violation(s) via the estoppel process, but really didn't enforce compliance.

What are your expectations about how to enforce? Would it be via fines? Whether you can enforce against buyers but not against current owners would be a good question for an attorney, as would be the question about whether this could be done by R&R.

how did you notify the new buyers of the violations via estoppel? as far as I know the board doesnt' even know when a home is going on market. I just drove around the neighborhood and saw 2 homes for sale signs. If I didn't drive around I would have never know the homes were for sale. Is this something the property managment company tells you?

do you think we could do the same thing. Tell new buyers there is a damaged cement driveway and it needs to be fixed or they will be fined?
vis ta vie
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 7:47 AM
As a long term solution can we flag all homes with bad driveways and issue them a special assessment to fix their driveways.
I say that there's not a snowball's chance in ---- that this would be lawful ("lawful" meaning "legally enforceable"). Why? Because using a special assessment, the HOA would be asking the owner to pay the HOA money so the HOA would now take the maintenance responsibility for the driveway.

Meanwhile the covenants say the owner has the maintenance responsibility for the driveway.

In the event the covenants say the HOA can go in and make repairs, then I still advise against this. Why? Because then it's not clear who has responsibility for the driveway when, say, someone has a slip and fall.

I suggest the board consider issuing violation notices. See what the effect of violation notices is on the transfer of property. Sometimes the HOA can force repair of an out-of-compliance ____ as part of the terms of a sale.

I disagree with MichaelT21's assertion about HOAs being 'generally' unable to stop the transfer of property. In many states, violation notices, being behind on assessments, and the like can stop a home sale.

Else I concur with the points SheliaH and DouglasK1 raise.
AugustinD
Posts: 1,027
Posted:
Note: As others indicated, I think this is all prep for meeting with a competent HOA attorney and asking what options the board has.
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 8:47 AM

how did you notify the new buyers of the violations via estoppel? as far as I know the board doesnt' even know when a home is going on market. I just drove around the neighborhood and saw 2 homes for sale signs. If I didn't drive around I would have never know the homes were for sale.


I'm not sure if you have something similar in your state, but in Florida when a house sells the closing agent sends the association a request for an estoppel letter. State law requires the association to provide at least some information including whether dues are up to date and any open violations. Note that this happens when a buyer makes an offer, not when the house goes up for sale.
Escaped former treasurer and director of a self managed association.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By DouglasK1 on 09/12/2022 8:57 AM
Posted By WendyM5 on 09/12/2022 8:47 AM

how did you notify the new buyers of the violations via estoppel? as far as I know the board doesnt' even know when a home is going on market. I just drove around the neighborhood and saw 2 homes for sale signs. If I didn't drive around I would have never know the homes were for sale.



I'm not sure if you have something similar in your state, but in Florida when a house sells the closing agent sends the association a request for an estoppel letter. State law requires the association to provide at least some information including whether dues are up to date and any open violations. Note that this happens when a buyer makes an offer, not when the house goes up for sale.

Yes in NC we have the same thing, but the property management company handles all of that, and they've never asked the board about adding violations to a home that is being sold. I guess we need to contact the property management company and see if this is something that can be addressed. It might piss off the seller, but at least we would of warned them of the issue.
vis ta vie
KerryL1 (California)
Posts: 14,550
Posted:
It's very common to issue violation notices that are then a part of the required disclosures that sellers make to buyers. Buyer reads these and can then demand seller fix, r-negotiate with seller, or buyer can back out. So you need to know what the disclosure requirements are in NC.

They're very detailed in CA.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By AugustinD on 09/12/2022 8:50 AM
Posted By WendyM5 on 09/12/2022 7:47 AM
I suggest the board consider issuing violation notices. See what the effect of violation notices is on the transfer of property. Sometimes the HOA can force repair of an out-of-compliance ____ as part of the terms of a sale.

Yes this is what I think would be best.
vis ta vie
AugustinD
Posts: 1,027
Posted:
If many driveways have been in disrepair for years, such that driving around the neighborhood today would suggest that no covenant requiring driveway maintenance exists, then the covenant (or a part of it) might be legally abandoned in a court's eyes.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
As I understand it, these are private driveways on one's property. Wendy just does not like the "looks" of some of them. I say they ae not the BOD's nor Wendy's business.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
North Carolina Rec422.pdf form says the following:

24. Is the property to be conveyed in violation of any local zoning ordinances, restrictive covenants, or other land use restrictions, or building codes (including the failure to obtain proper permits for room additions or other
changes/improvements)?

If you answered “yes” to any of the questions listed above (1-31) please explain (attach additional sheets if necessary):
In lieu of providing a written explanation, you may attach a written report to this Disclosure Statement by a public agency, or by an
attorney, engineer, land surveyor, geologist, pest control operator, contractor, home inspector, or other expert, dealing with matters within the scope of that public agency’s functions or the expert’s license or expertise.

so I assume we can tell property management company that they should inform the buyer that driveway needs to be repaired, and if they buy the house without the driveway being fixed, they are responsible to fix it, or the board will require a hearing and then start fining till fixed?

Wording might be a bit different but that gets the basic point across I think?
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By JohnC46 on 09/12/2022 9:13 AM
As I understand it, these are private driveways on one's property. Wendy just does not like the "looks" of some of them. I say they ae not the BOD's nor Wendy's business.

our CCRs state:
Driveway. Any driveway constructed or used in or on
any lot in the subdivision shall have either an asphalt,
brick or concrete surface which shall be kept and
maintained in good condition and repair.
vis ta vie
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By JohnC46 on 09/12/2022 9:13 AM
As I understand it, these are private driveways on one's property. Wendy just does not like the "looks" of some of them. I say they ae not the BOD's nor Wendy's business.
Driveway appearance is mighty subjective IMO. If the Board never provided clear guidance on what "keeping a home in good repair" means, then I think a rather strong argument could be made that a functional driveway is a driveway in good repair.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By AugustinD on 09/12/2022 9:12 AM
If many driveways have been in disrepair for years, such that driving around the neighborhood today would suggest that no covenant requiring driveway maintenance exists, then the covenant (or a part of it) might be legally abandoned in a court's eyes.

Just has not been enforced the CCRs state driveways to be kept in good condition.
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By AugustinD on 09/12/2022 9:23 AM
Posted By JohnC46 on 09/12/2022 9:13 AM
As I understand it, these are private driveways on one's property. Wendy just does not like the "looks" of some of them. I say they ae not the BOD's nor Wendy's business.
Driveway appearance is mighty subjective IMO. If the Board never provided clear guidance on what "keeping a home in good repair" means, then I think a rather strong argument could be made that a functional driveway is a driveway in good repair.

Perhaps, but is a seller trying to move out of the neighborhood really going to fight the HOA on this? Most normal people that see a cracked driveway with parts sunk down 2" would say it is not in good repair. I've seen HOA's nitpick rules that are even more anal like painting the house due to "faded" paint.

Trust me, these driveways need fixing. We're not going after tiny cracks in concrete only blatantly obvious ones.
vis ta vie
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 9:24 AM
Posted By AugustinD on 09/12/2022 9:12 AM
If many driveways have been in disrepair for years, such that driving around the neighborhood today would suggest that no covenant requiring driveway maintenance exists, then the covenant (or a part of it) might be legally abandoned in a court's eyes.


Just has not been enforced the CCRs state driveways to be kept in good condition.
"Just"? Not enforcing a CCR such that it is obvious to anyone driving around that the covenant, if it exists in the first place, is not being enforced goes to the very heart of what an abandoned covenant is.

Plus there's a vagueness argument. I know it seems obvious to you that the driveways are 'not in good repair.' But I am not sure I like your chances in court. It may be too much of a flip of the coin.

Post back if you want some case law from North Carolina on abandoned covenants, and I will take a look. Though I am pretty sure the criteria I listed above (many years; many homes; obvious to anyone driving around the HOA) will be the controlling criteria for determining if a covenant is legally "abandoned."
WendyM5 (North Carolina)
Posts: 1,522
Posted:
I agree it has been abandoned but we are a new board and will give current homeowners notice of violation and it might be several years till they sell and it gets fixed. I think a logical court would agree with us.

Unless the case laws shows that an abandoned covenant can never be reinforced in the future? which I find hard to believe?
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
I agree it has been abandoned but we are a new board and will give current homeowners notice of violation and it might be several years till they sell and it gets fixed. I think a logical court would agree with us.

Unless the case laws shows that an abandoned covenant can never be reinforced in the future? which I find hard to believe?
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
I agree it has been abandoned but we are a new board and will give current homeowners notice of violation and it might be several years till they sell and it gets fixed. I think a logical court would agree with us.

Unless the case laws shows that an abandoned covenant can never be reinforced in the future? which I find hard to believe?
vis ta vie
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 9:33 AM
I agree it has been abandoned but we are a new board and will give current homeowners notice of violation and it might be several years till they sell and it gets fixed. I think a logical court would agree with us.

Unless the case laws shows that an abandoned covenant can never be [re-enforced] in the future? which I find hard to believe?
Nationwide by my reading, some general truths from the case law:

-- A covenant that has not been enforced in quite awhile, but is not yet "abandoned", can certainly be enforced going forward.

-- The courts tend not to buy abandoned covenant defenses put forth by HOA owners. But once in awhile, the courts do.

I hear you about the two inches. I hear your outrage. I hear you that the disclosure form requires the owner to disclose whether there are any outstanding HOA violations. (Good work so far). Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest. As DouglasK1 pointed out IMO, this is well-treated in Florida law. I actually think in Florida, the estoppel letter is a bigger deal than DouglasK1 has indicated so far? In other words, if the estoppel letter is issued, it means the HOA cannot pursue correction of a violation that existed prior to the sale. So I thought.

DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 9:29 AM

Perhaps, but is a seller trying to move out of the neighborhood really going to fight the HOA on this? Most normal people that see a cracked driveway with parts sunk down 2" would say it is not in good repair.

Hopefully the buyer's inspection would have already identified the problem and the buyer and seller have already come to terms with how to deal with it. If the inspection didn't note it, the estoppel notification might prompt the buyer to to ask the seller to pay, or at least chip in.
Escaped former treasurer and director of a self managed association.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By AugustinD on 09/12/2022 9:46 AM
Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest.

Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By DouglasK1 on 09/12/2022 9:49 AM
Posted By WendyM5 on 09/12/2022 9:29 AM

Perhaps, but is a seller trying to move out of the neighborhood really going to fight the HOA on this? Most normal people that see a cracked driveway with parts sunk down 2" would say it is not in good repair.


Hopefully the buyer's inspection would have already identified the problem and the buyer and seller have already come to terms with how to deal with it. If the inspection didn't note it, the estoppel notification might prompt the buyer to to ask the seller to pay, or at least chip in.

You would hope but given that only a handfull of driveways have actually been fixed in our HOA, and we have about a 10% sales rate/year, history shows that people just dont' give a s***t about cracked driveways.

If it was taken care of naturally then about every 10 years the neighborhood would be refreashed due to new owners being forced to bring home up to CCR standards.
vis ta vie
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By AugustinD on 09/12/2022 9:46 AM
I actually think in Florida, the estoppel letter is a bigger deal than DouglasK1 has indicated so far? In other words, if the estoppel letter is issued, it means the HOA cannot pursue correction of a violation that existed prior to the sale. So I thought.

Reading 720.30851 Estoppel certificates doesn't seem to specify for sure if the law gives any protection for future enforcement of violations not noted, but at the least it would probably be a good defense in court.

In any case, when I did estoppel certificates I always assumed that any existing violations not noted should not be pursued later on.
Escaped former treasurer and director of a self managed association.
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By DouglasK1 on 09/12/2022 9:57 AM
Posted By AugustinD on 09/12/2022 9:46 AM
I actually think in Florida, the estoppel letter is a bigger deal than DouglasK1 has indicated so far? In other words, if the estoppel letter is issued, it means the HOA cannot pursue correction of a violation that existed prior to the sale. So I thought.


Reading 720.30851 Estoppel certificates doesn't seem to specify for sure if the law gives any protection for future enforcement of violations not noted, but at the least it would probably be a good defense in court.
For the interested reader (and not to be dismissive or anything of what DouglasK1 says), I believe law firms on the net discuss the point at length.

I always thought the Florida legislature put this statute section in precisely to cut down on litigation.

Quote:
In any case, when I did estoppel certificates I always assumed that any existing violations not noted should not be pursued later on.
This would be my position as well.
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 9:50 AM

Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.
Well I might be interested in stopping a sale where a violation feels serious enough to me to the well-being of the neighborhood and the Board's ability to enforce a covenant in the future.

Right now I am just trying to be as thoughtful as possible in deciding how I might vote on this, were I on this board. Plus I confess I hate having to ask the HOA attorney about this, because there is no black-and-white solution. The Board could pay a few thousand dollars (or more) to the attorney and not get anything that represents very much certainty.

Issue the violation notices. See what happens. The passage of time and events can inform one further.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By DouglasK1 on 09/12/2022 9:57 AM
Posted By AugustinD on 09/12/2022 9:46 AM
In any case, when I did estoppel certificates I always assumed that any existing violations not noted should not be pursued later on.

Do you have to have a realators license to do the estoppel certificate? or can any board member do it? If all the past board members put down all the CCR violations on a home during closing time I bet our neighbor hood would be in much better compliance. I guess the property managment commpany just doesn't have the intiative to investigate violations and write them done on closign paperwork?
vis ta vie
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 10:22 AM
I guess the property managment commpany just doesn't have the intiative to investigate violations and write them done on closign paperwork?
I hope you tread carefully issuing violations only when a home goes on the market. I think you are tempting some fiery exchanges between the seller (or the seller's attorney) and the HOA (or the HOA's attorney). As in this gives the appearance of interfering with a sale unlawfully. I know as a seller I'd be furious to learn the HOA was issuing a violation the instant I requested some estoppel type paperwork from the HOA, on an issue that had existed a long time. I'd cry "foul."
WendyM5 (North Carolina)
Posts: 1,522
Posted:
I agree, only violations currently on the books would be reported via closing. our hoa seems to write violations but has a hard time following up. I do not think there have even been any hearings for the last 2 years. Partially due to covid.
vis ta vie
SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 9:50 AM
Posted By AugustinD on 09/12/2022 9:46 AM
Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest.


Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.



Well, that's not the greatest way to welcome a new neighbor - Welcome to the neighborhood! By the way, your driveway is in violation of CCR XXX because it's cracked and messy. You have 30 days to fix it. Have a good day! You want to go after the new neighbor because you don't have the stones to go after the people responsible for the neglect? What in the actual @#$@ is wrong with y'all????

And why are you talking about kicking the can down the road? That's the trouble with a lot of HOA Boards - complain about this and that, but will not step up to be the adults in the room and at least try to enforce the rules everyone agreed to do when they bought the house in the first place. Based on your last conversation, I don't see where your board has tried to notify homeowners of this requirement and note how awful this can look to someone driving through the neighborhood because they're thinking about buying a home there. At least try to see what's happening with people - maybe some don't give a damn, while others really are working on it.

Rule enforcement IS a pain in the butt, but CCRs can be enforced by one neighbor against another, so if this really gets on your nerves, feel free to go after your next door neighbor, or the one at the end of the block. But you and your colleagues need to make up your mind - you can choose to enforce this CCR or not, but if you don't want to, why not poll the homeowners and ask if they'd be willing to sign off on dropping this requirement from the CCRs? Then when they end up with a moon crater that swallows their kid's bike or their SUV or get the crap sued out of them because a postal carrier slipped and fell and broke his hip, they'll remember this is why homeownership ain't cheap nor a spectator sport.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JohnT38 (South Carolina)
Posts: 1,631
Posted:
Quote:
Posted By SheliaH on 09/12/2022 10:59 AM
Posted By WendyM5 on 09/12/2022 9:50 AM
Posted By AugustinD on 09/12/2022 9:46 AM
Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest.


Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.



Well, that's not the greatest way to welcome a new neighbor - Welcome to the neighborhood! By the way, your driveway is in violation of CCR XXX because it's cracked and messy. You have 30 days to fix it. Have a good day! You want to go after the new neighbor because you don't have the stones to go after the people responsible for the neglect? What in the actual @#$@ is wrong with y'all????

And why are you talking about kicking the can down the road? That's the trouble with a lot of HOA Boards - complain about this and that, but will not step up to be the adults in the room and at least try to enforce the rules everyone agreed to do when they bought the house in the first place. Based on your last conversation, I don't see where your board has tried to notify homeowners of this requirement and note how awful this can look to someone driving through the neighborhood because they're thinking about buying a home there. At least try to see what's happening with people - maybe some don't give a damn, while others really are working on it.

Rule enforcement IS a pain in the butt, but CCRs can be enforced by one neighbor against another, so if this really gets on your nerves, feel free to go after your next door neighbor, or the one at the end of the block. But you and your colleagues need to make up your mind - you can choose to enforce this CCR or not, but if you don't want to, why not poll the homeowners and ask if they'd be willing to sign off on dropping this requirement from the CCRs? Then when they end up with a moon crater that swallows their kid's bike or their SUV or get the crap sued out of them because a postal carrier slipped and fell and broke his hip, they'll remember this is why homeownership ain't cheap nor a spectator sport.

You nailed it. Especially about not having the stones to enforce it the way that it should be. Silently waiting to drop this bomb on someone who puts their house up for sale is the chicken shit way to address it.
KerryL1 (California)
Posts: 14,550
Posted:
I can see my above seems to say to issue violation notice right before a sale. To clarify, issue notices to all of the worst offenders. At some point, the owners will want to sell and the violation notice with follow-up warnings, etc. are available for the prospective buyer via the disclosure requirements.

Then the buyer can re-negotiate with the seller, back-out, or demand the seller fix it, or leave funds in escrow for the buyer to fix, or, or....The HOA is not involved at all.

That Owners must keep their driveways in "good condition" is very clear, as is "good repair." Just because something functions means neither. Our commercial owner's(about 5% of our HOA) window sills, mullions/frames and doors from the sidewalks need to be painted/powder coated as they're extremely faded (21 y.o) streaked, etc. Their appearance has deteriorated gradually as probably is the case with the driveway surfaces. But they still function to serve their original purpose.

duglas' replies make sense to me.
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 10:22 AM
Posted By DouglasK1 on 09/12/2022 9:57 AM
Posted By AugustinD on 09/12/2022 9:46 AM
In any case, when I did estoppel certificates I always assumed that any existing violations not noted should not be pursued later on.


Do you have to have a realators license to do the estoppel certificate? or can any board member do it? If all the past board members put down all the CCR violations on a home during closing time I bet our neighbor hood would be in much better compliance. I guess the property managment commpany just doesn't have the intiative to investigate violations and write them done on closign paperwork?

There are no specific requirements to issue the estoppel certificate other than you have to have the authority from the HOA to do so. For associations that have MCs, they would typically be the ones to fill out the form and return. For self managed associations, it could be a board member or whoever handles the accounting or even some other designated person. In my case I was treasurer and did the accounting.

Escaped former treasurer and director of a self managed association.
LetA (Nevada)
Posts: 2,679
Posted:
Unless the driveway is a common element or a limited common element, stay out of it.
LetA (Nevada)
Posts: 2,679
Posted:
Quote:
Posted By WendyM5 on 09/12/2022 10:40 AM
I agree, only violations currently on the books would be reported via closing. our hoa seems to write violations but has a hard time following up. I do not think there have even been any hearings for the last 2 years. Partially due to covid.

And it will appear PETTY if you hit the new owner right off the bat with a violation such as this.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By JohnT38 on 09/12/2022 11:03 AM
Posted By SheliaH
You nailed it. Especially about not having the stones to enforce it the way that it should be. Silently waiting to drop this bomb on someone who puts their house up for sale is the chicken shit way to address it.

So give them 60 days to fix $12k issue? How would you deal with it?
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By SheliaH on 09/12/2022 10:59 AM
Posted By WendyM5 on 09/12/2022 9:50 AM
Posted By AugustinD on 09/12/2022 9:46 AM
Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest.


Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.



Well, that's not the greatest way to welcome a new neighbor - Welcome to the neighborhood! By the way, your driveway is in violation of CCR XXX because it's cracked and messy. You have 30 days to fix it. Have a good day! You want to go after the new neighbor because you don't have the stones to go after the people responsible for the neglect? What in the actual @#$@ is wrong with y'all????

And why are you talking about kicking the can down the road? That's the trouble with a lot of HOA Boards - complain about this and that, but will not step up to be the adults in the room and at least try to enforce the rules everyone agreed to do when they bought the house in the first place. Based on your last conversation, I don't see where your board has tried to notify homeowners of this requirement and note how awful this can look to someone driving through the neighborhood because they're thinking about buying a home there. At least try to see what's happening with people - maybe some don't give a damn, while others really are working on it.

Rule enforcement IS a pain in the butt, but CCRs can be enforced by one neighbor against another, so if this really gets on your nerves, feel free to go after your next door neighbor, or the one at the end of the block. But you and your colleagues need to make up your mind - you can choose to enforce this CCR or not, but if you don't want to, why not poll the homeowners and ask if they'd be willing to sign off on dropping this requirement from the CCRs? Then when they end up with a moon crater that swallows their kid's bike or their SUV or get the crap sued out of them because a postal carrier slipped and fell and broke his hip, they'll remember this is why homeownership ain't cheap nor a spectator sport.

All I read was hyperbole, no moon craters will be formed. Lol
How would you enforce getting costly fixes done?just give em a few months then start fining then put lein then foreclose?
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By LetA on 09/12/2022 3:54 PM
Posted By WendyM5 on 09/12/2022 10:40 AM
I agree, only violations currently on the books would be reported via closing. our hoa seems to write violations but has a hard time following up. I do not think there have even been any hearings for the last 2 years. Partially due to covid.


And it will appear PETTY if you hit the new owner right off the bat with a violation such as this.

New homeowner would know before they bought the house that it had the issue

Are you suggesting I should feel bad for someone who knowingly bought defective housing?
vis ta vie
SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By WendyM5 on 09/13/2022 4:34 AM
Posted By LetA on 09/12/2022 3:54 PM
Posted By WendyM5 on 09/12/2022 10:40 AM
I agree, only violations currently on the books would be reported via closing. our hoa seems to write violations but has a hard time following up. I do not think there have even been any hearings for the last 2 years. Partially due to covid.


New homeowner would know before they bought the house that it had the issue

Are you suggesting I should feel bad for someone who knowingly bought defective housing?

Oh, please. The fact is you don't have the guts to go after the current of owners, and figure it's easier to enforce the rule against new owners. You're petty and a coward- and that goes for your colleagues.

Why, pray, don't you want to enforce this rule RIGHT NOW? Are you afraid of the pushback? If do, how will you respond if you go after said newbie and his/her attorney says

"ms. Wendy, how long has this driveway been like this? Two years? OK, may I see the violation notices you sent the last owner? You don't have any? Well my client has only been here six weeks - why hold him responsible for this when you knew the driveway was out of compliance for TWO BLOODY YEARS and did nothing???"

Good luck defending that.....

Or

You can send a letter to everyone and give them three to six months to either fix the driveways or file an appeal. The ones who blow you off, refer them to the association attorney and go from there. If you're paying attention, you may see some patterns to the responses, such as some of your homeowners are on fixed income and are having to choose between the driveway and heart medicine. Perhaps those people need more time ir someone could help them contact organizations that assist elderly ir disabled homeowners with home improvements.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By SheliaH on 09/13/2022 5:42 AM
Why, pray, don't you want to enforce this rule RIGHT NOW?
?

The OP already indicated that, if the HOA starts issuing violations for the driveways, doing so immediately is the plan.
MarshallT (New York)
Posts: 414
Posted:
I think this should be a apart of maintenance responsibilities while the owner is still living at the home. But of course that's different if the HOA is required to maintain the driveways. If the latter is the case, it sounds possible. But if it's the owner's responsibility, then perhaps issuing fines is a more reasonable solution.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By JohnT38 on 09/12/2022 11:03 AM
Posted By SheliaH on 09/12/2022 10:59 AM
Posted By WendyM5 on 09/12/2022 9:50 AM
Posted By AugustinD on 09/12/2022 9:46 AM
Dig more and see if the existence of violations can cause the HOA to stop a sale and force the seller and buyer to negotiate. Maybe an NC title company might answer this question the quickest.


Not intersted in stopping the sale! just interested in telling the new buyer that they will have to pay to get the driveway fixed and then most buyers will comply and/or negotiate with seller to get it fixed.



Well, that's not the greatest way to welcome a new neighbor - Welcome to the neighborhood! By the way, your driveway is in violation of CCR XXX because it's cracked and messy. You have 30 days to fix it. Have a good day! You want to go after the new neighbor because you don't have the stones to go after the people responsible for the neglect? What in the actual @#$@ is wrong with y'all????

And why are you talking about kicking the can down the road? That's the trouble with a lot of HOA Boards - complain about this and that, but will not step up to be the adults in the room and at least try to enforce the rules everyone agreed to do when they bought the house in the first place. Based on your last conversation, I don't see where your board has tried to notify homeowners of this requirement and note how awful this can look to someone driving through the neighborhood because they're thinking about buying a home there. At least try to see what's happening with people - maybe some don't give a damn, while others really are working on it.

Rule enforcement IS a pain in the butt, but CCRs can be enforced by one neighbor against another, so if this really gets on your nerves, feel free to go after your next door neighbor, or the one at the end of the block. But you and your colleagues need to make up your mind - you can choose to enforce this CCR or not, but if you don't want to, why not poll the homeowners and ask if they'd be willing to sign off on dropping this requirement from the CCRs? Then when they end up with a moon crater that swallows their kid's bike or their SUV or get the crap sued out of them because a postal carrier slipped and fell and broke his hip, they'll remember this is why homeownership ain't cheap nor a spectator sport.


You nailed it. Especially about not having the stones to enforce it the way that it should be. Silently waiting to drop this bomb on someone who puts their house up for sale is the chicken shit way to address it.

I agree it is chicken shit. I have also maintained that it is a reach for it to be a violation.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
So the board should just selectively enforce the ccrs? Its clearly a rule in our hoa.

our CCRs state:
Driveway. Any driveway constructed or used in or on
any lot in the subdivision shall have either an asphalt,
brick or concrete surface which shall be kept and
maintained in good condition and repair.

vis ta vie
JohnT38 (South Carolina)
Posts: 1,631
Posted:
Quote:
Posted By WendyM5 on 09/13/2022 10:07 AM
So the board should just selectively enforce the ccrs? Its clearly a rule in our hoa.

our CCRs state:
Driveway. Any driveway constructed or used in or on
any lot in the subdivision shall have either an asphalt,
brick or concrete surface which shall be kept and
maintained in good condition and repair.



You are already selectively enforcing by singling out only the people that are selling their house. Make a complete list of driveways that you think are in violation and send everyone of them a notice that it needs to be fixed by x/x/xxxx. How much time you want to give them and the amount of any future fines is up to the board. EVERYBODY gets treated equally.

If you are a "kick it down the road" kind of board then drop the entire issue and let your replacements do the dirty work. This attitude is one of the worse characteristics that a board can have.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By JohnT38 on 09/13/2022 12:27 PM
Posted By WendyM5 on 09/13/2022 10:07 AM
So the board should just selectively enforce the ccrs? Its clearly a rule in our hoa.

our CCRs state:
Driveway. Any driveway constructed or used in or on
any lot in the subdivision shall have either an asphalt,
brick or concrete surface which shall be kept and
maintained in good condition and repair.




You are already selectively enforcing by singling out only the people that are selling their house. Make a complete list of driveways that you think are in violation and send everyone of them a notice that it needs to be fixed by x/x/xxxx. How much time you want to give them and the amount of any future fines is up to the board. EVERYBODY gets treated equally.

If you are a "kick it down the road" kind of board then drop the entire issue and let your replacements do the dirty work. This attitude is one of the worse characteristics that a board can have.

We already did. No one has done anything for almost 30 years you really think the next board will step up? Get off your high horse no one has made a decision yet. Just researching possibilities
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By JohnT38 on 09/13/2022 12:27 PM
Posted By WendyM5 on 09/13/2022 10:07 AM
You are already selectively enforcing by singling out only the people that are selling their house.

Oh please I just asked about it give me a break.
vis ta vie

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