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Broken garage door

Started by ShelleyC4 • 19 replies • 466 views

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ShelleyC4 (Washington)
Posts: 6
Posted:
We have a resident that ran into their garage door, and it's completely gone. There is a tarp in its place, and it's been 2 yrs. The hoa fines them every month, but say they can't force them to fix it. Now, Farrell cats live in there. Is there any other action we could take against them for lack of compliance? Thank you
KerryL1 (California)
Posts: 14,550
Posted:
Is it their own garage door or is it possibly limited use common area?

If theirs, what rules do you have about maintaining the exterior of the homes? Any rules about appearance? Anything in your covenants? What violation are you fining them for?
SheliaH (Indiana)
Posts: 6,964
Posted:
After reviewing your documents for the answers to Kerri's questions, talk to the association attorney about your options- which you should have done at least 18 months ago.

If feral cats live there, that can create other problems, starting with the stink from their poo, which may attract vermin and kill plants. This might be considered maintaining a nuisance and that could be something you can sue for. Be sure to ask for the homeowner to reimburse the association for all legal expenses incurred in bringing the lawsuit.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
LetA (Nevada)
Posts: 2,679
Posted:
You keep fining them provided you are allowed to keep fining for the same issue. If allowed by law, you can place a lien for unpaid fines. You should check with your HOA's attorney.
This may be an issue for code enforcement. File a complaint and let the local government do the dirty work. The issue with the feral cats may be a health and safety issue. Again
bring this up with your legal council.
MichaelT21 (Arkansas)
Posts: 462
Posted:
See my answer to your question in the other thread. Basically, you can and should send them to your collections attorney for legal collections and if/when that fails, file a foreclosure lawsuit for failure to pay asessments. In this case, your assessments are the fines that you have levied.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Slow the roll on lines and foreclosure advice. That may not apply in their state for fines. Instead this is a case of HOA replaces the door and sends owner the bill. If left unpaid then you lien for that. It is not forecloseable. It is not an unpaid dues. It is damage.

The HoA rules should allow this.
Former HOA President
TimB4 (Tennessee)
Posts: 21,062
Posted:
We were specifically advised by our attorney NOT to enter anyone's property without a court order unless it is an actual emergency. To do so could result in trespassing charges.

Additionally, it will likely be very hard to find a company to do work on any property without the owners permission.

I suspect that the Associations next action would be to consult with an attorney.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I am not advising to enter the property. Just this is the right of the HOA has. How you do it should be done legally.
Former HOA President
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By MichaelT21 on 10/22/2022 9:05 PM
See my answer to your question in the other thread. Basically, you can and should send them to your collections attorney for legal collections and if/when that fails, file a foreclosure lawsuit for failure to pay asessments. In this case, your assessments are the fines that you have levied.

Fines are NOT assessments, I repeat fines are NOT assessments!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Thank you Max... You can NOT count Fines as "assessments/Dues". They are "PUNITIVE". For Kerry who can't tell that Punitive and corrective actions means the SAME thing. A fine means you are paying money (where it hurts most) to perform a corrective action. Which is "PUNITIVE". It is NOT a required fee or money. You can't base your budget on it.

Dues on the other hand are required to be paid and not because you did something wrong. It's like paying utilities. Fines are like paying speeding tickets. You can lose your utilities if you don't pay. A speeding ticket usually don't lose your car. (Not going into the "state" thing here as I use the word "USUALLY). The HOA you don't pay your dues, you can lose your home. Not paying the money to correct a violation not so much.

Now again some HOA's in some states, do a "creative" bookkeeping practice. (I do NOT agree with this at all). They will take your dues and apply it to your fines. This means it will look like your NOT paying your dues. Once it looks like your not paying your dues, then that can be basis of a lien/foreclosure. It's NOT directly based on Fines. It is based on the appearance of not paying dues.

Know the difference between fines and dues. It will help you greatly when taking the proper legal actions. You add on to this "Damages" that adds one additional layer. "Damages" is when the HOA pays to correct a violation and NOT fine. It isn't a "fine". It is "damage" the HOA paid to correct/repair the violation back to original condition. (Court sees this as making one "whole"). It's not basis of foreclosure but can be a lien placed for that "damage" till the owner pays up. It's a RARE thing that really needs a lawyer involved in.
Former HOA President
AugustinD
Posts: 1,027
Posted:
Fines can be assessments if the governing documents or state statutes so decree.
MichaelT21 (Arkansas)
Posts: 462
Posted:
Quote:
Posted By MaxB4 on 10/23/2022 10:31 AM
Posted By MichaelT21 on 10/22/2022 9:05 PM
See my answer to your question in the other thread. Basically, you can and should send them to your collections attorney for legal collections and if/when that fails, file a foreclosure lawsuit for failure to pay asessments. In this case, your assessments are the fines that you have levied.


Fines are NOT assessments, I repeat fines are NOT assessments!

Fines are assessments in our HOA. From our Rueles and Regulations:

"Assessment” means all sums chargeable by the Association against a
Homeowner, including, without limitation, regular and special
assessments, fines imposed by the Association, interest and late charges
on any delinquent account, costs of collection, including reasonable
attorney’s fees and related legal fees or costs to lien incurred by the
Association in connection with the collection of a delinquent owner’s
account, costs and and attorney’s fees incurred by the Association in
connection with the enforcement of the Governing Documents, and all
other sums payable by an owner to the Association as provided in the
Governing Documents."
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By MichaelT21 on 10/23/2022 11:55 AM
Posted By MaxB4 on 10/23/2022 10:31 AM
Posted By MichaelT21 on 10/22/2022 9:05 PM
See my answer to your question in the other thread. Basically, you can and should send them to your collections attorney for legal collections and if/when that fails, file a foreclosure lawsuit for failure to pay asessments. In this case, your assessments are the fines that you have levied.


Fines are NOT assessments, I repeat fines are NOT assessments!


Fines are assessments in our HOA. From our Rueles and Regulations:

"Assessment” means all sums chargeable by the Association against a
Homeowner, including, without limitation, regular and special
assessments, fines imposed by the Association, interest and late charges
on any delinquent account, costs of collection, including reasonable
attorney’s fees and related legal fees or costs to lien incurred by the
Association in connection with the collection of a delinquent owner’s
account, costs and and attorney’s fees incurred by the Association in
connection with the enforcement of the Governing Documents, and all
other sums payable by an owner to the Association as provided in the
Governing Documents."

Rules (Rueles) and Regulations don't man "jack".

Show me what it says in your CCRs!
MaxB4
Posts: 3,513
Posted:
If you want to consider fines as assessments and the CRRs state that assessments are to be applied uniformly, how do you apply a fine uniformly?
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By MichaelT21 on 10/23/2022 11:55 AM

Fines are assessments in our HOA. From our Rueles and Regulations:

"Assessment” means all sums chargeable by the Association against a
Homeowner, including, without limitation, regular and special
assessments, fines imposed by the Association, interest and late charges
on any delinquent account, costs of collection, including reasonable
attorney’s fees and related legal fees or costs to lien incurred by the
Association in connection with the collection of a delinquent owner’s
account, costs and and attorney’s fees incurred by the Association in
connection with the enforcement of the Governing Documents, and all
other sums payable by an owner to the Association as provided in the
Governing Documents."
I suspect this is in the HOA Declaration, with said Declaration borrowing from RCW 64.90.010:

"Assessment" means all sums chargeable by the association against a unit, including any assessments levied pursuant to RCW 64.90.480, fines or fees levied or imposed by the association pursuant to this chapter or the governing documents, interest and late charges on any delinquent account, and all costs of collection incurred by the association in connection with the collection of a delinquent owner's account, including reasonable attorneys' fees.

See https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.010

But in Washington, it also appears that fines are not allowed to be included in liens and foreclosures. See https://app.leg.wa.gov/RCW/default.aspx?cite=64.90.485
MaxB4
Posts: 3,513
Posted:
Another magnificent piece of writing by the attorneys for the State legislators.
KerryL1 (California)
Posts: 14,550
Posted:
Melissa wrote: "For Kerry who can't tell that Punitive and corrective actions means the SAME thing." I never wrote or implied that punitive is the same things as "corrective actions, a term I never used. I wrote that the purpose of fines is solely not putative but can be a deterrent to keep folks in line or to keep violations from being repeated.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Kerry that is the SAME thing! It's just called "Punitive". Not sure why you keep insisting there is some kind of difference? Punitive means to punish for not being in compliance or instill corrective action. You get a fine whether your speeding or you paint house the wrong color. It's just as "punitive".
Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
Sorry, I wrote "putative," fine word, but not for here. A deterrent is a preventative. To deter is to prevent. Punitive means punishment. The punishment/punitive action could deter one from repeating the violation. But HOA leaders hope that the threat of fines deters violations in the first place.
LayaS (Nebraska)
Posts: 249
Posted:
Quote:
Posted By TimB4 on 10/23/2022 5:19 AM
We were specifically advised by our attorney NOT to enter anyone's property without a court order unless it is an actual emergency. To do so could result in trespassing charges.

Additionally, it will likely be very hard to find a company to do work on any property without the owners permission.

I suspect that the Associations next action would be to consult with an attorney.

I agree with Tim. In my opinion, the HOA can't replace the garage door and charge it back to the owners. Melissa told me my HOA would remove my no-dig fence and charge me for the work. Ha! My neighbors love my fence. And the HOA has not said a word. Probably because I got permission from an HOA board member and it looks really nice.

I don't think it's a legal remedy in this situation. Consulting an attorney is good advice.

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