Homeowner installed incorrect siding twice

We have a homeowner that asked for approval via email for the color of new siding they were considering.
We approved the color, and provided the list of requirements for the siding they planned to install and asked that they send us the quote from the contractor they were planning to use so that we could approve the project.
They proceeded to install siding without approval. We verified that the siding they chose did not meet the requirement (they had boxes sitting in their driveway so we got the make and model) and told them via email to stop installing the siding, remove it, and get approval for siding that does meet the requirements before resuming work.
They agreed to remove the siding and sent in a model of siding that did meet our requirements so we approved it.
Work began again, wrong siding was removed and new siding installation began.
Strangely there were no boxes visible and the new siding did not look right, it was wavy and flimsy looking. The job was also unfinished and they did not wrap certain areas correctly.
One day someone saw a box laying in the front yard and took a picture and sent it to the board.
It was a different siding, but it was not the model we approved and did not meet our requirements.
We emailed them asking for a receipt or contractor bid showing the make and model of siding they installed and it was been a week with no reply.

We plan to send a certified letter explaining the situation and demanding they remove the incorrect siding and replace it, as well as follow the guideline for wrapping exposed wood and other details.

I am trying to get ahead of this, so what should we be planning should they not do that and leave the house as is?

Do we start the lien process, but I'm not sure how much that should be? Should it be the cost of doing the job correctly? With the caveat that if they do it correctly themselves that we will remove the lien?

I hate doing this but they did this to themselves, we provided everything that they needed to do it correctly.

First, what is the wording in your documents that requires owners to get widen approval from your ARC or Board? this probably is in your CC&Rs (AKA covenants, deed restrictions, declaration )? But check your Articles of Incorporation too. Are there any reference to penalties if owners refuse to comply? Is there wording to the effect that owners wold have to replace materials that weren't approved by your Assoc., or some such language. Are there references to certain forms or reuqts the ones must complete to receive approval? Emails sound a little sketchy.

Next, your documents must give you the authority to fine. We can hope you have a Schedule of Fines. In ours, penalties are included, so the owner must restore to the original condition. And we could level a fine too. These couldn't occur except following ups process in our state & documents so perhaps the same applies to you.

Often it's that the owner is called to a hearing and presents their side. The board decides where to penalize or not. If a penalty & instructions to t return to its original state, a letter must be sent to the owners demanding that.

So I think you'd want to take those steps, if they apply to your HOA & state, before you consider a lien.

Thanks for reply ElleN, I thought I was replying to you in my previous reply! But thanks to you and the other replier for the info.
I will definitely do some more digging around penalties and fines and our rights to enforce something like removal of siding.

Allan

Basically a lien is filed when one owes money. In the case of an HOA the money owed is either unpaid dues or unpaid fines. In order to fine an association must have a published fine schedule thus allowing the association to lien based on unpaid fines.

To stop unapproved repairs you can get a Cease and Desist from the courts. At this point I would get a Cease and Desist letter from your association's lawyer.

Good info thank you JohnC46!

We are also starting the process to make them clean up their front yard and we do have a right, spelled out in the CC&R, to enter their property to do things like mow lawns, trim trees, remove garbage, remove weeds, etc. and charge it to the homeowner. We plan to charge it back via lien for the costs of the landscaping and lien fees. That would be a specific amount backed by receipts and invoices.

From our lawyer friends in Michigan, pertaining to condos but I believe also applicable to non-condo HOAs:

FINES

Assuming that the association has an enabling provision in its bylaws, the association may levy fines for violations of the bylaws. Newer associations usually have a fines procedure in their condominium bylaws drafted by the developer; associations with older condominium bylaws may need to amend their documents to provide a fines procedure.While some associations have adopted a fines procedure as a regulation of the association as opposed to a bylaw amendment, a fine levied by regulation may not be enforceable. The Michigan Court of Appeals has suggested that an association may by regulation affect only relatively minor and procedural matters regarding administration of the condominium project, and it is doubtful that levying a fine would be considered "minor." On the other hand, the bylaws are recorded into the co-owner's chain of title when he purchases the unit, or he has had the capability to enter into the debate when the fines procedure is adopted.The fines procedure should provide the co-owner with some minimal "due process." Due process is a constitutional concept (the 14th amendment to the U.S. Constitution provides that "...[no] state shall deprive any person of life, liberty, or property without due process of law....") which means that a person must be given notice of the action proposed to be taken against him and an opportunity to be heard. While only governments are required to provide due process, a fines procedure which provides due process is more palatable to the affected co-owner and is much more likely to stand up in court if the co-owner decides to challenge the fine. While setting forth a complete fines procedure is really beyond the scope of this article, there are certain concepts which should be a part of a useful, effective fines procedure. The fines procedure should:

1.
define the types of violations which will be covered ("...all violations of the pool regulations...")

2.
state who has authority to levy the fine ("...the decision of the board shall be final.")

3.
state the type and/or method of notice which will be given and who will give it ("...the managing agent shall send notice by first class mail...")provide the co-owner an opportunity to dispute the charges ("...the co-owner may appear at the next scheduled board meeting to contest the charge.")

4.
state the amount of fine which will be levied ("...$25 for the first offense, $50 for the second offense...")

It is not necessary that the association provide an appeals process.The board of directors should be aware that the levying of fines is an enforcement tool, not a source of revenue for the association. While levying fines gives some teeth to the association's bylaws and rules and regulations, the association should be willing to waive the fines in appropriate, though limited, circumstances. Also, although there are no reported Michigan cases discussing the issue, courts in other states have held that fines are not collectible by the lien process. A model fines procedure can be found here.

If a fine schedule is not already in place, I have concerns the OP's HOA can exercise an ex post facto fine policy for the siding violation.

Placing a lien on the basis of fines is state-dependent. It may or may not be legal in Michigan.

Nor do I think this HOA should be trespassing on an owner's lot without first consulting an attorney.

Reminder to those many newbies of many years: In Michigan, "bylaws" contain what other states call "CC&Rs."

If we were to create a fine schedule we would have to notify owners that the change was being considered and then notify them after the board votes. We are discussing this at next meeting.

There are at least 3 different things going on here. Allen wrote: 1. "We have it in our DCCR that homeowners must maintain their lots, lawns...and that we have the right to enter the property to do this for them with the costs being charged to the homeowner." Is it the case that your DCCR does not state HOW you go about charging them for the work? You don't see any language like "enforcement assessment" as in CA? Or similar? You may need to ask your HOA attorney if you can simply send them a bill.

2. You need to set up a schedule of fines. ElleN observes her citation only applies to condos; her other citation too, only applies to MI condos. I read that HOAs are different and mainly are under the Nonprofit Corp. Act and Michigan AG. So I do not assume the condo materials apply to HOAs. I also saw many references to CC&Rs, declaration, etc. not solely to bylaws. I saw that the DCCRs contains mostly restrictions. And MI HOA bylaws contain the usual as in other states about org. operations, how the HOA is run, meetings, voting, officers, etc.

So, it seems to me your schedule of fines most certainly won’t be a bylaws amendment. It can be a new rule following the procedure you noted, Allen, which is also required in CA. Is this procedure in your CC&Rs? Or someplace else? Can you cite it exactly, please? While it’s true Rules don’t carry the weight of a CC&R article, it’s also true that that if reasonable, you won’t be headed to court on them. IMO, and I'm sure it's out of an abundance of kind caution, ElleN hyperemphasizes possible lawsuits.

3. Architectural Guidelines or Rules. I disagree with ElleN that your amendments to your CC&Rs might be weak in a lawsuit. And I don’t think you’re headed there. We all know, to follow ElleN’s recent scattered “tyranny of the majority” musings, that the original governing documents represent a tyranny of the minority—the developer, the developer’s attorneys and, often, the developer’s initial management company. We all know that at the beginning the minority has all of the power. How is that preferable to majority rule? Amendments represent the realities of HOA’s owners and participants lived experiences who want change.

It sound like your board needs a separate set of ARC Guidelines, which are common in many HOAs. I do agree with ElleN that your board never should have violated your own new CC&R!

Given the multiple issues that have emerged, Allen, I really urge you & your board to have a qualified attorney help guide you.

Awwww, your mention, ElleN, reminds me of my amazing, single mom, Lucy. The best ever! Helps me start my week off with a big smile.

Allen cites his own CC&Rs and/or DCCRs. Is his HOA an anomaly? Is he making stuff up? I, with attentive skimming of Michigan discussions about HOAs, NOT condominiums, read that rules, restrictions, limitations, arch. materials etc. are in CC&Rs. And they are in Rules & Regulations. Bylaws are involved with, as I wrote above "...the usual as in other states... org. operations, how the HOA is run, meetings, voting, officers, etc."

Now...if only I'd pay attention to the days of the week ! (Re: my smiling salute to my mom)