HOA - Violations from previous owner.

Hey all,
I have a neighbor who has received a violation for replacing his windows without the boards approval. He is a new owner and several years ago, the previous owner changed out the windows. They are an approved style of windows, the previous owner just did not get permission to do the changes. Is he liable for this violation? Is there a statute of limitations for something like this in Hawaii?

I am not sure what year but the current VP is still VP since 1995
Yes this is a condo.

New owner did not commit the violation. Seller should have disclosed it to buyer who could have recourse against seller. Surely there is a statute of limitations. Ours is 5 years.

In California CC&Rs are not contracts, they are enforceable equitable servitudes. However, they are interpreted like contracts in court. While CC&R statute of limitations is 5 years but contracts are 4 years.

If he has to pay a fine he should get reimbursed by seller. 😊

I hope you saw that I said the six year limitation likely does not apply here.

KrisJ4, also look for any paperwork from the condo association provided during the sales and closing process saying the unit is free and clear of violations. Title companies do not conduct sales when there are outstanding violations, unless the title company missed something.

Then hopefully all the owner would have to do is provide evidence he/she did not install the windows. Like maybe a letter from the previous owner?

Kris,
I am certainly not a lawyer and not nearly as detailed as ElleN with her responses but my angle to take would be the Grandfathered clause. If they have had the windows for over 6 years and no fines were issued or paid the violation should be rescinded. It is the PM and the boards job to see this violation and pursue it in a timely manner. Six years is not timely. I am sure that this owner had no idea what windows are exceptable and which aren't.

Isn't your neighbor entitled to a hearing?

Usually it would be the Board deciding, which would be a good time to apply some common sense...

So your entire Board went along with this in the first place? (I would have thought it was just the PMC)

Personally, I just don't understand this mindset... (not your's, sounds like your trying to help)

How does this help the community and how would your board members feel if they were in your neighbor's shoes. Really good way to alienate someone who could be living in your community for a number of years.

Did the new owner ask for permission before they did the work? Is that what brought the issue to their attention?

When the unit that had the incorrect windows that were installed, a lien should have been placed on the unit. There should have been a very clear statement that the unit cannot be sold without the correct windows being installed or the money to have the changes made.

Typically during the purchase of a home in an HOA the lender will ask for a statement that there are no existing violations, no overdue dues, and no pending legal action. In FL this is called a Estoppel Letter. If this happens, the HOA cannot come back at the new owner.

Wow thank you all for the comments! I really appreciate it! @ElleN LOL my beloved fellow board members!! To be honest, I do think were all just trying to do the right thing but in different ways. I'll be talking to my neighbor later this week. In the meantime, I will be talking to the rest of the board and hopefully this is a simple mistake on their part. The windows are legal (same windows as mine) and were installed years before he ever bought the place. If I have to put up a fight, the current HOA President painted his window to match the trim (against the rules) and I imagine I can find other broken rules. Problem is, I also have items from a previous owner so I am trying to keep a target off my back.
Again all, you are a great digital community and I am happy to be here. Thank you!

Kris, not sure if this applies to your case but former owners have no standing to sue the association over CC&Rs (and vice versa).

I’m late to the party once again, but … I echo MarkM’s comments. This kind of thing has happened a few times in my neighborhood, and it’s always been grandfathered. At worst - for instance, a *gasp* disallowed fence color - the resident is advised to return to an approved color when they next replace the fence.

I completely do not understand the mindset behind wanting to fine over something like this. 6 year SOL or not, I think it is unconscionable to go after someone after all this time has passed.

Bill

fining for something that is not a violation is ridiculous.
Waht is the fine based off of? Most HOA's call this kind of fine a failure to submit ARC fine.
Well the new owner did not submit the ARC because he didn't know the fine should be mailed to the previous owner.

board members that think the new guy should be fined should be fired IMHO.

wrong, read the context. how can you logically disect a sentenance but then ignore the rest of the post that contradicts your assumptiosn?

The author said a fine had been levied against the new owner.

Kris, since you are on the board, you must have some idea of what brought this to the board's attention, and what the association is trying to accomplish with this enforcement action.

In my HOA (single family homes in WA), if the board becomes aware of work that has been done without approval, we first try to determine if it is something that the board would approve. If it is, the work is usually just ignored rather than following enforcement to get the paperwork in order. In my opinion, this is a mistake. It's always better for the homeowner to have that approval in writing to protect them against future boards that may be more strict about these things--as your neighbor is finding out now. And it's always a good idea for the HOA to have the paperwork in order to protect against future accusations of preferential treatment/unequal enforcement.

We have an ethics pledge (pretty standard, written by our attorney) that says the board must all speak with one voice, supporting all duly-adopted board decisions. This means that, even though I was in the minority that voted against a decision, I still have to support it as a duly-adopted decision. To apply it to your case, it would not be appropriate for me to commiserate with my neighbor about how frustrating the board's decision was and how much I disagreed with it. Further, it wouldn't be appropriate for me to work with my neighbor to try to challenge the board's decision unless I recuse myself from that decision-making process.

You mention above that if you do help your neighbor fight this, you could point out ways in which other board members are in violation. I recommend against that. Each violation should be enforced on its own merits and enforcement should never be about revenge or getting even.

You also mention that violations exist on your own unit and you're trying not to be noticed. If violations exist on your lot, you should consider addressing them--preferably before this board or a future board makes an issue of it. As you mentioned, it's not a good look for board members to enforce violations on others but not themselves. If the rules are important, they should be followed and if they're not, they should be changed. It's not fair to the rest of the owners in your community if your willingness to enforce violations is influenced by your desire to keep your own violations under the radar.

Why would they ask permission for windows that were already installed and are an approved style? How on earth would they know that the windows weren't original to the unit and that the previous owner actually installed those windows without permission?

That's the problem - the current board is trying to hold the current owner accountable for something they couldn't have reasonably known. They're punishing the new owner for not being a mind reader. Even if the board could do this legally, any potential benefits will be likely outweighed by the negative consequences.

At this point I think the probability is near 100% that either the COA, the seller or both stated in writing shortly before closing that the unit had no outstanding violations. After all one of the purposes of a title search is identifying whether such violations are in place. My quick skim of the Hawaii Condo Act seems to support this.

I suspect a few calls (to the realtor and title company) and/or a review of the sales and closing paperwork should provide all the evidence the OP needs to make her case.

How do we know for sure that is approved? Your forgetting one should ask permission and not forgiveness in a HOA. Even if it matches the requirements it needs recorded it was approved for proper history.

Wow. For real? Just me, but I wouldn't sign such a document. Do your governing documents contain an "ethics pledge" requirement of some kind? Do people running for the Board have to sign off on an agreement to sign the ethics pledge if they are elected?

(On the other hand, in the two years I've been on my BoD, I've never had to sign *any* kind of waiver or agreement. I do occasionally wonder if there's been some kind of massive screwup in our process).

Bill

our last PM made us sign an ethics pledge, they had no authority.
I like them, trying to get it codified into our bylaws.