Being Sued for previous owners' possible violations

This is a little odd - Are there no laws in Indiana that require the seller to provide the purchaser with the HOA docs and disclosures? Usually the PM would note all this in the disclosures and you could either walk from the contract after receiving the disclosures or assume the conditions. There's a lot of pieces missing here.

1 - Perhaps it was never approved, but perhaps you might just file an application for this. Also check with zoning office. Sometimes there are setback requirements that prevent you from pushing this right to the property line. It might be hard for them to enforce this one, since it's been so long since it was built. Did the PM or HOA send the owner violation letters on the barn? When did they send first notice?

2. Rock Garden/Retention wall - The phrase "retention walls are illegal in our town." is laughable almost. So which is it a retention wall or rock garden? They need to cite from their HOA docs or design guidelines, the specific language that would have prevented this feature from being approved and/or built.

3. Fence, Deck, Mini-Barn - You might have to do so, but again, why wasn't this diclosed to you in the HOA docs?

4. Liens on Property - It's whatever land records shows. It sounds like they never got around to filing the lien, in which case, it sounds like IMO that their screwed.

Grandfathering is sort of a falacy - Just because one Board didn't do their job, it doesn't necessarily mean that the next board can't and won't enforce the rules.

The language here referencing the Power Disaproval clause is IMO what I call the screwball clause. Who in the
heck wrote this language? Certainly not any attorney. That's a little broad in nature and IMO any judge may get a good laugh at this one.

Wouldn't it be a little more plausible or logical to write something like "In order to approve your application, “the basic idea must be sound and appropriate to it’s surroundings”. It also must be compatible with the architectural characteristics of your home, adjoining homes and the neighborhood setting.

Or..unfortunately, we find that the scale of this project is disproportionate to your home and its surroundings. The CC evaluates all submissions on the individual merits of the Application. Besides evaluation of the particular design proposal, this includes consideration of the characteristics of the housing type and the individual site, since what may be an acceptable design of an exterior in one instance may not be in another. Design decisions made by the CC in reviewing Applications are not based on any individual’s personal opinion or taste. Judgments of acceptable design are based on the following objective criteria, which represent in more specific terms the general standards of the Covenants.
Validity of Concept. The basic idea must be sound and appropriate to its surroundings.
Design Compatibility. The proposed improvement must be compatible with the architectural characteristics of the applicant’s house, adjoining houses, and theneighborhood setting. Compatibility is defined as similarity in architectural style, quality of workmanship, similar use of materials and color, and construction detail.
Location and Impact on Neighbors. The proposed alteration must be compatible with the landscape, the existing structure, and the neighborhood. may cause unwanted shadows on an adjacent patio property or infringe on a neighbor’s privacy. [SF-H]
Scale. The size, in three dimensions, of the proposed alteration must be compatible with adjacent structures and surroundings. For example, a large addition to a small house may be inappropriate. [SF-H]
Color. Color may be used to soften or intensify visual impact. For example, an addition that is similar to the existing house must match the house in color for features such as roof and trim.
Materials. Continuity is established by use of the same or compatible materials as were used in the original house. The options may be limited somewhat by the design and materials of the original house. For instance, horizontal wood siding on the original house should be reflected in an addition. On the other hand, an addition with wood siding may be compatible with a brick house.

$3,000 for prior violations? - I'll have to research this one.

Wow! Welcome to your new community! Sorry you got this stuff!

As the ACC Chair and a former BOD, I recently went to a seminar at a law firm wherein we were informed that anything that is constructed on a property and exists for over 1 year without ACC taking action or following procedures of the governing docs usually will be considered grandfathered - UNLESS it's in an area that is not visible or easily visible to the committee members doing inspections. Had a HUGE issue over a trampoline that was in my neighbor's yard prior to us moving into our house - apparently never got submitted or approved and no one doing inspections ever caught it, DESPITE the fact that it was so easily visible it wasn't even funny. Of course, your state may be different.

Check your title info - your Title Co. will usually get you a clearance letter prior to closing - and if they didn't follow proper procedure your title insurance will likely cover it (their funds, not yours.) If you got a clearance letter that no existing issues were on the property, you should be good and tell the BOD and ACC (or ACG in your instance) to communicate with your title company/realtor and leave you alone. As a new owner, this shouldn't be your issue - call your Title Co. and Realtor and ask that they look into the matters and ensure the BOD/ACG stops contacting you.

i would be carefull about filing any applications for the barn ect. once done they might have you. also in fl. you can not lien for violations,only non payment of dues

I too am confused as to what "liens" could be placed on your property for those violations? You never mention any accrued fines, so what the heck are those liens for? A lien has to be monetary. Sounds like your president is huffing and puffing. They apparently weren't able to bully the previous owner, so are trying it on you. Are there other similar violations in your HOA? Do a survey of all other properties in your HOA looking for unenforced violations. You could probably have a legal case for non-disclosure against the previous owner if he had notice of those violations prior to selling.
You know, Arizona has a bill in the hopper that would, among many other things, require a board to enforce all covenants unilaterally and put the onus of proof that they are doing so upon the board. This bill may not pass this year, but it shows the degree of attention some boards are bringing upon all of us at the state level. I see Virginia is looking at requiring a license and bonding for HOA management companies due to an alleged embezzlement of HOA funds by a management company. And the states keep picking away.

Scott - Do your governing documents state something to the effect that in the event Association, or its designated ARC (Architectural Review Committee) fails to approve of disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with?

it does state that the AGC will approve with in 30 days, but it doesn't go much further. everyone i've talked to (meaning attorney's I know) have told me to tell them to screw off. The location isn't in violation based on the covenants or guidelines; its their opinion.

I have found out that the previous owner and the HOA president have went round and round about this for years. We are currently on our 3rd Management Firm and none of the previous firms were ever able to make anything stick. Now the Management Firm is really working with me to get to a resolution. They seem to feel that the HOA president is being excessive and has a grudge regarding this property.

Like I said, he's 65+ yrs old and lives 2 doors from me. I have a very nice house, everything is well maintained, my childerns toys are never left out even in my own back yard. I mow and maintain my lawn every 4 to 6 days depending on rain, all cars are parked in my garage except for visitors. I don't see what could be so bad about me or my property. But it looks like he is intent on making it personal based on the way he spoke to me last night. Actually told me if I "am not going to do what we (the BOD) tell me, they are not even going to discuss the issues with me. And we don't have to explain or prove anything!"

Really, this is a grown man speaking like this. This makes me think of a great quote from one of my law professors in college...

"Better to remain quiet and appear ignorant, than to open your mouth and prove it"

-Scott W

ScottW1 - I was curious about the AGC 30 day approval because another HOATalk poster had it in her docs that her review Board had 30 days to approve or disapprove otherwise approval would not be required. In other words there was a statute of limitations in favor of the owner. If your AGC had something similar it may explain why the previous owner went ahead with the modifications/enhancements. Be that as it may, if you are within the guidelines and there was a clear title, the crotchety neighbor needs to back off. Doesn't sound like he's being reasonable, though you may try to appeal to him man to man as neighbors.

CORRECTION...I was so frustrated when I was typing I've ACG meaning Architectural Control Guidelines, when I was meaning to refer to the committee (ACC). Please forgive my ignorance

Also check your sale docs to see if the management company gave your title company a "clearance letter" also sometimes a transfer letter/status letter. That document, usually from management to title would have to note any current violations noted on the property - if management gave it clearance with NONE of those things listed, your ACC/BOD will need to deal with them, not you. If your letter DID list those things, you may have taken title "knowing" and responsible for those items. If you don't have anything in your package - call the Title company to see if they got one or requested one. If they forgot - title insurance. I personally would not fill out anything for the BOD or ACC since it existed prior to you being on the property. If the previous owner is responsible for not disclosing, that will involve them.

And yes, I totally agree, definitely all states have different laws, so you need to know if there is anything specific to your state and also know case law from other states if there's nothing in yours.

WOW!! That's very damning information. Do you have a copy of the attorney letter? What is the President's problem, he needs to go to Disneyland with the rest of my states #1 football team!!! Sounds like you have an advocate of sorts in the PM.

The property management group called and agreed to mediate and set up a meeting with the BOD and myself. They stated that they can not see where the violation was liened or even if the previous owner has received notification in the last two years.

They believe as well as I that the president has a personal grudge against the property for his "authority" being over-ruled. They believe it will have to be explained the true legal position. So basically, they are going to back him down because he IS incorrect in his attempts to enforce non-existing covenants, restrictions and guidelines.

ScottW1: Wonderful example of working together, learning the true situation not heresay, and taking action in a professional manner with backup (or lack of!) to prove your position.

You will be looked on as an asset in your community for working through in the best possible manner. Good job Scott! And, kudos to the PM as well!

Hows this for an open PM...I requested the HOA member list with addresses. I plan to write a letter to document the abuse of powers and the excessive legal fees the HOA has incurred due to these abuse. The letter will be personally address to every homeowner and have a place for a signature if they wish to removed the entire BOD/ACC (currently the same 5 guys for the last 4 yrs, checking for voting records on that now) and replace them at a special meeting. The legal fees have amounted to roughly 15% of our annual dues; in the view of the PM that is excessive and more than any other property of theirs.

Thank you all for you comments and kudos. I plan on letting everyone I know that this website is available for resource. I have found great information with in this forum.

All I can say is, thank you 24 hrs of legal courses in college Finally got my money's worth!

thank you for your words of caution. This would actually be the second time i've done this (help dissolve my HOA at my previous home)...there is an overwhelming number of people in the community that are now involved. In January 2008, letters went out to over 70% of the owners for "violations"...many for yawn ornaments, christmas lights, faded shutters and unkept landscape.

Mind you, this is Indiana. Its been raining, snowing and below 30 degrees for 85 of the last 90 days.

Reading many of the post on here, most discussions are regarding how to fix bad neighbors. My neighborhood is in a very nice part of town, the demographics of our county and specifically our neighborhood are very good.

Is there another way to fix a bad BOD other than through exercising the democratic process of removal and election of new officers?

Fantastic work!!! In your meeting, be sure not to agree to fill out any forms or release any of your rights just for the sake of peace since the situation is prior to you being involved - so inform any request to do so that you will need to check with the actual people involved if something needs to be done.

Good luck to you!!!