ACC Violation - Handle it the Quicker Way?

LoriM15 (Florida)
Posts: 1,009

Posted:

Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By LoriM15 on 12/12/2022 7:25 AM
Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

I can't really say for sure because I don't know how you handle things typically with other similar situations. It's important to treat all people in your community in a similar fashion.

However, in our community, we normally ask the person who made the change to submit an ACC application. If denied, we could issue a fine for non-compliance. We would issue fines on a weekly basis. When the fines eventually reach around $900 and are aged 90 days, then we send the issue to legal collections to collect on the unpaid fines. All legal costs are charged to the homeowner.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By LoriM15 on 12/12/2022 7:25 AM
Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

I would go with option two based on her personality and history. She didn't submit the ACC application to test you and I would call her bluff now.

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By JohnT38 on 12/12/2022 7:34 AM

Posted By LoriM15 on 12/12/2022 7:25 AM
Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

I would go with option two based on her personality and history. She didn't submit the ACC application to test you and I would call her bluff now.

But does her Board have a policy of fining people who don't submit ACC applications? We do not. I have pitched one, and have been shot down by the other Board members. An HOA can only fine based on a published fine schedule, and I suspect few HOAs have fine schedules that allow for fines for failing to submit ACC applications in advance of work being completed.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By MichaelT21 on 12/12/2022 7:36 AM

Posted By JohnT38 on 12/12/2022 7:34 AM

Posted By LoriM15 on 12/12/2022 7:25 AM
Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

I would go with option two based on her personality and history. She didn't submit the ACC application to test you and I would call her bluff now.

But does her Board have a policy of fining people who don't submit ACC applications? We do not. I have pitched one, and have been shot down by the other Board members. An HOA can only fine based on a published fine schedule, and I suspect few HOAs have fine schedules that allow for fines for failing to submit ACC applications in advance of work being completed.

She said send a notice, not a fine.

LoriM15 (Florida)
Posts: 1,009

Posted:

We usually ask someone to submit an ACC application and then let it be denied.

Our documents allow for fines up to $100 per day for a continuing violation. At $1000 we can file a lien. Maximum fine is $5000. What usually happens is that it goes on their account because they are refusing to pay and their monthly payments gets credited to the violation first, so they become delinquent in their monthly dues.Then they have late fees and interest. All of that is legal in Florida.

I suppose we can also get an injunction to have the fence removed, but then we would be incurring attorney's fees and that's not ideal.

The chair of our ACC has suggested we send her a letter asking her what her intentions are since she was a former member and knows the rules. I guess once we get that letter we will know how to proceed. My guess is she will say "talk to my attorney".

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By JohnT38 on 12/12/2022 7:41 AM

Posted By MichaelT21 on 12/12/2022 7:36 AM

Posted By JohnT38 on 12/12/2022 7:34 AM

Posted By LoriM15 on 12/12/2022 7:25 AM
Our governing documents clearly say that all fences in our community must be white metal. It's been that way for the last 22 years. Over the last few years we have had requests for black metal fences that have all been turned down. We have a homeowner who used to be on the ACC and while on the committee tried to get the fence rule changed because she wanted to replace her white fence with a black one. She was unsuccessful and frankly was so disruptive she was removed from the ACC when her term was up. Last week she installed a black fence and did not even submit an ACC application.

We have two choices - take the long route and ask her first to submit an ACC application, then have it denied twice, then go to the board for appeal, board denies and sets fine, and finally it goes to the fining committee. This will take at least 4 - 5 months.

Or we can just send her a first violation notice - since she's clearly in violation of the documents by both not submitting an ACC application and also using the wrong material - and give her a reasonable amount of time to either paint or replace the fence. She can appeal to the board and then go to fining. Next regular board meeting is not scheduled until February so this would be a little faster.

I suspect either way this is going to end up with a lawsuit since she is 1) very aggressive and this is clearly an "in your face" move and 2) very wealthy, so a fine is not going to be an issue.

I want to do things as legally as possible so there are not technicalities if we end up in a lawsuit.

I would go with option two based on her personality and history. She didn't submit the ACC application to test you and I would call her bluff now.

But does her Board have a policy of fining people who don't submit ACC applications? We do not. I have pitched one, and have been shot down by the other Board members. An HOA can only fine based on a published fine schedule, and I suspect few HOAs have fine schedules that allow for fines for failing to submit ACC applications in advance of work being completed.

She said send a notice, not a fine.

OK, let me rephrase my reply:

But does her Board have a policy of issuing compliance notices to people who don't submit ACC applications? We do not. I have pitched one, and have been shot down by the other Board members. An HOA can only issue violation notices when it is congruent with the compliance process. I suspect most HOAs simply ask people to fill out ACC applications after the fact rather than issuing violation notices when homeowners do work without approved ACC applications in place.

LoriM15 (Florida)
Posts: 1,009

Posted:

We do send notices to homeowners who have done work without ACC approval and have fined a few. Usually we just ask them to submit the application and it gets approved, maybe with a modification or two. But if we have someone who ignores the notices or refuses to submit an application then we do fine.

I know it sounds like we live in a very strict community, but we only had two fines last year with 825 units (about 600 of those are single family). And both of those were for doing work without ACC approval - one would not have gotten fined except he was a repeat offender.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We had a policy that if you did not remove the violation we did it for you. We sent you the bill for our expenses. This does not mean every HOA can do this comfortably. It is an option as we did not fine. It can be used as leverage as well.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Lori

Follow your rules about this as she might try to legally test you. Be sure you have dotted the i's and crossed the t's.

SheliaH (Indiana)
Posts: 6,964

Posted:

If she wants to spend a bunch of legal fees fighting over a fence she KNEW was prohibited, let her. You can always ask for reimbursement of the association's legal expenses if you countersue. Some people have more money than common sense, so let's see how this ends.

I suspect she wants you to jump the gun in sending a nastygram from the attorney, so she can turn around and scream selective enforcement or some other BS. You can't control what she thinks and why, but I suggest going ahead and sending her the first violation notice. Following your guidelines and documenting what you do should help the HOA's case - and make her explain why she deliberately went in the other direction although she was well aware of the HOA policies. If she's so gung ho about black fences, she could have walked the neighborhood and persuaded other homeowners to pursue a change in the rules.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

LoriM15 (Florida)
Posts: 1,009

Posted:

As long as we follow our documents with regard to notices and fining procedures I think we are in good shape with this case. If you look at this article, https://www.floridacondohoalawblog.com/2020/09/02/the-associations-strong-hand-for-the-removal-of-non-approved-structures/ it appears we could pretty quickly get an injunction. The white fence requirement has always been in our documents. She had an opportunity to put in an ACC application (she has had one in for landscaping and another for new windows in the last few months). There is no selective enforcement as no black fences have ever been approved and the only one in the neighborhood is the exterior boundary fence and wall that has always been there. The only other black fence I know of is the one around a pool that was put in without ACC approval and not discovered for several years since it's in the back of the house. All other homeowner's boundary fences are white.

There are five members on our ACC. One requested a black fence and was turned down before he got on the ACC. One is a close friend of the fence homeowner and may have a conflict of interest because his wife works for the fence homeowner's family business.

The sad part of this is the black fences actually look better than the white ones. But with so many white fences, mixing in the black ones looks bad - this homeowner's next door neighbor has a white fence attached to her new black one.

And obviously money does not equal sense in this case. The new fence had to have cost at least $10,000. Her application for new windows was for $70,000. We sent "friendly letter" asking for an explanation. I expect we will hear back from her attorney. The reason that I think she is simply thumbing her nose at the association is that she lives one door down from me and knows I'm on the board. We served on the ACC together. And I can clearly see her fence from my back yard.

KerryL1 (California)
Posts: 14,550

Posted:

I'd say follow your docs. Meanwhile can your Board vote to withhold amenity privileges from her?

LoriM15 (Florida)
Posts: 1,009

Posted:

We got the best response ever from the homeowner after the PM sent the friendly email. First email said they have been waiting for the community to come up to their standards and that the “hideous” clubhouse was an example of how outdated the architectural standards are. Then we got an email saying they are simply refusing to remove the fence because the rules are out of date and white fences are ugly. This is not going to be easy.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

paint it purple when they are on vacation if your bylaws allow you that power. or whatever color your rules say it has to be. Our HOA doesnt' have any resitrctions on what color a fence can be. Some are white some are wood some are black metal

vis ta vie

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By LoriM15 on 12/12/2022 8:31 PM
We got the best response ever from the homeowner after the PM sent the friendly email. First email said they have been waiting for the community to come up to their standards and that the “hideous” clubhouse was an example of how outdated the architectural standards are. Then we got an email saying they are simply refusing to remove the fence because the rules are out of date and white fences are ugly. This is not going to be easy.

Not necessarily. If I were the judge, I'd ask "well, Mrs. W, if you felt that way, why didn't you suggest that the board poll the community to see how IT felt? If you feel that strongly, you could have resigned from the ACC and then walked the neighborhood to encourage people to let the board know how they felt. You don't get to ignore the rule just because you think they're stupid or outdated - are you aware of how your documents state how they can be amended? If not, why not?"

Some people want what they want and to hell with everyone and everything else, and life has a way of putting those people in their place, so let her have at it. Yes, there might be some people who agree with her, but the board needs to emphasize there is a method to this madness and if they want changes to stick, they have to do it the right way.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You know what is easy? If they sue, file a countersuit. That would be for the expenses the HOA has occurred and the expense if they were to correct it. Which I would read your documents if your HOA has this power.

Now for those who are up in arms about NOT going onto the property... That does not necessarily mean that put in a different context or use. The HOA can get bids of correcting the violation if they were to incur it. This would be of use in the court system for filing or countering a lawsuit. This is also information would share with the person if they choose to pursue a case. Let them know the power the HOA has and the expense of which they will pay. That may be strong enough counter to get them to know the HOA does not play ...

Former HOA President

LoriM15 (Florida)
Posts: 1,009

Posted:

I spoke with our association attorney this morning. He agreed the homeowners have no case at all in regards to the color of the fence based on our current documents. He did say that whatever attorney they might hire is going to try and pick apart the way we handle the violation process since there is no case so we have to be careful. We agreed to wait to send the attorney letter threatening an injuction and other remedies until we see how they reply to the first official violation. PM is going to send it today giving them 30 days to file an ACC application for a compliant fence. Our next ACC meeting is the second week in January so that fits into this timeline. Attorney says the clock starts ticking on the $100 per day fine on the date of the first official violation notice. However, can't actually institute the fine until the case is heard before the board who recommends the fine, then heard before our fining committee who approves the fine. By that time we will be close to the $5000 max. It will be interesting to see how this ends.

The attorney got a big kick out of the statement from the homeowner that our clubhouse is "hideous" and our architectural standards outdated. Why choose to live in a community where all the houses are ugly and you can't stand the way the amenities look?