HOA violation question

I forgot to mention that the voicemail recording contains 2 neighbors. Openly discussing out in the common area.

In your situation, I'd want to give the HOA attorney a heads-up. This could get nasty, with the former board member claiming that it was not his voice and that you're falsely accusing him to damage his reputation, or some such nonsense. He's already demonstrated that he's willing to be shady, so assume that he'll continue along that path.

The board should probably consider what to do if this guy simply goes ahead with the work without approval. How much money is the HOA willing to throw at this to get the guy to comply?

Hello,

I want to express my gratitude for all the comments. Your assistance is greatly valued.

While we haven't yet uncovered the complete story, the neighbor behind him informed management that the homeowner was trimming tree branches in the backyard. Unfortunately, one of the branches fell, causing damage to a section of both the roof and the wall.

In such instances, the CC&R mandates that the homeowner inform the HOA and submit a design review prior to commencing repairs. Depending on the extent of the repairs, a city permit may also be necessary.

The management company issued a cease and desist letter, urging the homeowner to halt the repairs and submit a design review application. Regrettably, the homeowner disregarded this request and continued with the repairs.

Since the work was taking place behind the house, the management was unable to visually inspect the backyard.

Subsequently, the homeowner submitted a letter asserting that they were solely engaged in replacing roof tiles and applying touch-up paint, contending that a design review was not obligatory per the CC&R.

I believe the management sent out the hearing notice in order to ascertain the situation, especially given that the work was completed a month ago.

The maximum penalty for this infraction is $300, and we have no other recourse for addressing the homeowner's non-compliance with the cease and desist order and completion of the repairs.

The recording demonstrates that the homeowner had intended to deceive the HOA alongside other homeowners. Without it, we would have been unaware of the truth.

The most significant concern I have is that several homeowners are aware that a formal board member hired unlicensed contractors for work that lacked proper permitting. If the board turns a blind eye simply because the repair job is complete, it could lead to substantial difficulties in addressing future CC&R violations and potentially result in legal action from homeowners.

Also, if you use the recording as evidence against a homeowner, you will not inspire trust from the membership.....and since your #1 job is to protect the association, you could be exposing it to liabilities.

With this new information, I may be inclined to let this go. Maybe.

* Without the phone call, you would have assumed that the homeowner was simply restoring his home to its previous condition after tree limbs fell on it. I can see why an owner would question the need for a design review in such a case.

* *is* the guy simply making repairs, or is he changing the design of his home? Do you even know?

* What is the harm to the HOA if he uses an unlicensed contractor, doesn't get permits, and this comes back to bite him in the future? If there is harm, can you put a dollar figure on it?

* A $300 penalty is chicken feed and is unlikely to deter anyone from anything. Are you prepared to incur legal costs if this blows up into something bigger?

I repeat my previous comment about talking to the HOA attorney about this situation. I understand your reluctance to allow a jerk to get away with being a jerk. But sitting here in the cheap seats, I can see the potential of throwing lots of dollars into a fight that the HOA may not win for some undetermined future benefit.

Supporting the above:

https://www.avvo.com/legal-answers/is-it-legal-to-share-a-voicemail-that-i-received--471095.html

https://www.justanswer.com/criminal-law/8ono3-legal-post-internet-voicemails-left.html

https://www.justanswer.com/law/4wk2h-legal-post-harassing-voice-messages-internet.html

From RCFP.ORG

Common areas are private property, not public.

In-person conversations
All parties to any confidential communication must give permission to be recorded, according to California’s eavesdropping law. Cal. Penal Code § 632(a). The law, however, specifically excludes from its application any conversations occurring in public places or government proceedings open to the public, or where the participants could reasonably expect to be overheard or recorded. Cal. Penal Code § 632(c).

Additionally, California’s so-called “anti-paparazzi” law prohibits trespassing with the intent of capturing photos or sound recordings of people in “private, personal, or familial activity.” Cal. Civil Code § 1708.8. Using a device to capture such photos or recordings — that would have otherwise required a trespass — is prohibited as well. Id. Committing an assault or falsely imprisoning subjects of a photo or sound recording can also lead to violations of the law. Cal. Civil Code § 1708.8(c).

In those cases, the caller intentionally left the message.
In this case, the caller didn't know he was being recorded.
The main thing here I still think is losing trust of membership if they think a director can't keep a confidence.

You really believe that??? How do you "accidentally" send a voice mail, especially after someone TOLD you about another end run he was already planning? Since it was common area where anyone could be on it, should there an expectation of privacy as well?

In these days of everything landing on the internet, people should assume they're being recorded wherever they are - along with behaving as if they had some home training. Why do you think there are so many instances of people doing stupid stuff only to get got after it lands on TMZ, Twitter (X) or TicTok?

If another homeowner reported the "behind the house" project, he or she could also be called as a witness. If either side can prove a violation or not without the recording, great, but that's an explosive piece of evidence someone needs to see. Maybe this ends up in court and you present it to the judge to make the call.

In any case Jason, don't sit on something like this again - going to the attorney should have been your first step, not running to the internet. If you have former (or current) board members behaving like this, it may be time for all of you to have a discussion about ethics, or at least how to approach similar issues in the future.

This hearing should occur in executive session, on account of the disciplinary ramifications.

You present the photographs and the voicemail at the (disciplinary) hearing, with the owner present. You ask the owner what he has to say about these photographs and the voicemail.

If the owner asks you where you got the voicemail, you say "All I know is it is a voicemail left on my machine. Is that you talking?"

Let him say whatever.

After the owner leaves the board continues in executive session. The directors vote as their consciences dictates.

In my opinion the board will have given the owner due process and will have protected itself from liability down the road for violations of the covenants and city/county ordinances.

Let me emphasize this:

City/county ordinances in this instance undoubtedly exist for people's safety. Disregarding the safety issues here is unconscionable. This owner is an idiot for failing to consider the repercussions both for him and the HOA here.

Good questions. I say if just repairing the damage then a design review in unwarranted.

You do not know if he was unaware or not. For all we know, the owner wanted to tip off the board member because his spouse was pushing him to violate the rules, covenants and city/county ordinances.

Only someone who never served as director would overlook the safety implications here.

As for trust: How on earth can anyone trust this owner when he says anything?

You have been clear that you want boards following the rules, covenants and statutes. It's interesting that when not following the rules, covenants and statutes seems to work in an owner's favor, you are all for the board violating the rules, covenants and statutes.

If these are single houses then a owner getting building permits and hiring licensed contractors is none of the BOD's business.

Also, the neighbor may have witnessed the tree trimming, but did he actually witness branches falling and causing damage? Or did he get some or all of his information from what he was told by the neighbor afterwards?

This is pretty shaky stuff to base an enforcement action on.

People are so worried about the board violating covenants or laws on privacy yada.

I am worried about the owner violating covenants and lying on official HOA documents. The implications for the owner are serious if and when the lies are discovered.

The board does a disservice to the other owners by ignoring false, material statements on an ARC application.

Covenants often require that HOA members use licensed contractors.

Are we sure this is even a violation? Or is an ACC overstepping its authority?

I'd like to see the text of the CC&Rs that requires association approval for repairs to a home and any limitations on that. In a townhouse community, sure - I can understand it. But in a community of single family homes where the damage is in the back yard? And the owner didn't leave a message saying "I'm gonna build me an unapproved addition on the back of my house, let 'em try to stop me, mwah-ha-ha!!"

Cathy's most recent post repeats my questions from way above that Jason did not answer. WHAT is the wording in the CC&Rs that suggests this owner is in violation?

Have the OP cite the specific language in the CCRs requiring an ARC for repairs. I have never seen one, but could be wrong.

I will amend my earlier response to say that such a requirement is less likely for SFH HOAs. If such a requirement is present for a SFH HOA, it may very much depend on the nature of the work.

In the future would you kindly try to provide a link to anything quoted? The above comes from:

https://www.kazlg.com/california-call-recording-laws/#:~:text=The%20person%20who%20made%20the,Use%20an%20Electronic%20Device.

Though my opinion remains that the owner consented the instant he dialed your number. And no, it does not matter if this was a "pocket dial" from a cell phone. If one puts a cell phone in one's pocket, then one certainly intends to make calls by pocket dial, to people on your contact list, from time to time. It is not the recipient's obligation to make sure the sender (of a voicemail) is sober, technologically competent, et cetera.

Regardless, for the safety of all (including liability concerns), the klieg lights should be turned on, all evidence produced, and this guy should be given the third degree at the hearing.

Three of us have specifically requested the verbiage in your CC&Rs, Jason. Let's try again. Your summary suggests a violation. I, for one, think all the talk about the phone, etc., means nothing if there is no violation. No one can complain about "selective enforcement" if there is no violation. What IS this alleged violation?

Jason wrote:" I believe the management sent out the hearing notice in order to ascertain the situation, especially given that the work was completed a month ago." What does "ascertain" mean in this usage? Usually, it means "figure out," or evaluate." Our HOA's manager does not send a hearing notice unless the violation has been confirmed--nothing needs to be ascertained.

Please also cite the wording in the violation letter to this owner.

Another governing document in CA HOAs is Architectural Guidelines or some such title. What is the wording in this document about this alleged violation? Exact quotes, please.

Don't be concerned that some evil stranger will figure out the name of your HOA by citing your CC&Rs section on this topic--most--are boilerplate and your language probably appears in 100s of them.

Plumbing & wiring, IF involved, should not be a concern of an HOA in a SFH UNLESS a gov doc says so.

Even our high rise's old and also rewritten CC&Rs do not require that Owners must hire licensed contractors to do every kind of work that I might have done in my Unit. These licenses (and insurance) ONLY are required when seeking ARC approval. And the reason is obvious: ARC approval is required when wall penetration is needed and for the relocating or adding plumbing and/or wiring for a project in a Unit. The Assoc. wants to make sure that the building's integrity is protected.

My HOA's CC&Rs also say nothing about "safety" and I can't see how it fits this topic.

Honestly, Elle, your reply is freakin' hilarious. I served for 14 years with diligent & ever-increasing knowledgable effort on a Board of complicated twin-tower 25-story high rises. I continue to serve informally. We replaced the "cooling towers" (huge HVAC systems) on both roofs, which were hoisted by the tallest crane west of the Mississippi. We replaced 100s of square feet of granite on the public side exteriors of our towers on the bottom two stories. Weeks of covered sidewalks. We recaulked the entire window systems on both towers. Our 7000 panes of glass are within these system. Weeks of workers in swing stages above protected common areas. "Safety" was apparent all of the time .But, how odd, I didn't hear phrase.

It may surprise you that the project managers and general contractors we engaged for these and many more huge projects, whom, of course, we interviewed to do the projects, deal with permits and the City. None said "infrastucture codes." The contracts did not promise to abide by them. There is absolutely no need for any director to know the phrase. All readers: do not bother learning this phrase. Perhaps as a former engineer, Elle needed to know it?

My spouse & I built, or completely or partial remodeled maybe 14 homes or condos over the years. We did indeed deal with "the City" for permits. We even installed a roof-top solar system our Santa Cruz house back in the 1980s. Damned if anyone in "the City" tossed around that phrase.

It's clear you're on a mysterious mission, Elle, to try to trash me and my experienced-based suggestions & willingness to help posters. But this most recent attempt was your biggest fail. You incapable of bullying me off this forum. And I can't see how your goofball attempts fit with the above in yellow.

I know from infrastructure code - at least of the residential variety. And while it is *based* on safety, "safety" is too vague for enforcement (unless a structure falls down and people start looking for the real code violations).

Various building codes have specific, measurable, and quantifiable requirements that must be met; that inspectors look for specifically; and that are checked off and the inspector certifies as have been met. Homes under construction, for example, go through multiple rounds of inspection at each phase of construction. Builders don't progress to the next phase until the inspector(s) have signed off on the current one. And all of the paperwork must be completed before a home receives a certificate of occupancy.

Anyway, this particular thread started with a voice mail message. We *still* don't know the actual wording of the CC&Rs that indicated that the person in question violated any covenants. A hearing based on nothing but he-said-and-the-other-guy said - with nothing in writing - is a fishing expedition. It bugs me to side with Mr. Tree Trimming, who does sound like a jerk. But if the board intends to make him prove his innocence, rather than being sure that there was actually a violation and wanting to determine any mitigating circumstance... I'd say the board is on the wrong track and may get their butts handed to them. This sounds like a mess with the potential to blow up legally, so they should - wait for it - talk to the freakin' HOA attorney before taking action against the homeowner.

However, it sounds to me like that voice mail message is just too juicy to be ignored and the board is determined to take action of some sort. I boldly predict that they will and that It Will Not Go As Planned. I hope I'm wrong.

Thanks for getting this back on track, Cathy* I agree with you & others that we need a citation. The OP's summary may very well be mistaken as we've seen often here. Most verbiage in C&Rs is generic & boilerplate.Whatever firm ore Jason's wrote dozens perhaps hundreds of others other the years. I do not believe for one second that a CC&R section on ARC requirements as summarized by the OP is unique by any stretch to the OP's HOA. None of us here can know IF the requirement for HOA approval was correctly summarized in this particular case.

Elle wrote: "The purpose of the hearing is in part to see if, per the covenants, permits are required and if so, were they acquired." In my HOA and I believe most others, the determination of whether a permit is required is made before the hearing. The "pi pose" is to hear the alleged violator's side of the issue.

We, and I 'm sure many others do not call owners to a hearing unless there is evidence of a violation. Never on gossip, etc. At least two Assoc. members/staff must confirm the violation or, of course, photos or audio recordings may also be submitted. Is failure to get a permit a violation of Jason's CC&Rs??

That the manager was unable to inspect the alleged violation. because it's "behind" the house cannot be true. CC&Rs have in them that with proper notice the Association or its agents many inspect such areas. In my condo HOA, they may even come into my home. The wording would be VERY generic.

I'm feeling like Jason and perhaps others in his HOA are approaching this situation with a lot of emotion and are not carefully following their governing docs. I'm sensing it the same way, I believe that Cathy is.

*I, of course, know the goals of "Enforcement Code," but there is no requirement for Board members or HOA owners to need to know the definition of that phrase to be worthy participants n their HOAs. I have no idea why "safety" became a part of this thread.

You too have failed today's "knows answer when told" quiz.