Violating President

Started by KenD • 20 replies • 1488 views

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KenD (Florida)
Posts: 3

Posted:

We have a violator who claims he is not (RV parked in plain view of adjacent street) who is our new president.
7 people on the board but three of them are negative because of similar violations either in the past or currently.
The other four (including past president) are against this RV. And so are the residents. (We have 19 lots in our development) I'm a Director and feel a letter needs to go to him outlining the violation and quoting covenants etc.
Can I write the letter alone or do we need to vote on this???
Everyone except me is intimidated and are not familiar with Covenants and Bylaws etc. I feel if we don't have something in writing to him specifically outlining his violation we won't have much to go on if we can get to mediation. Please advise.

AnnaD2 (Florida)
Posts: 960

Posted:

Yoo, hoo, oh Donna, where are you????

DonnaS (Tennessee)
Posts: 5,671

Posted:

Ken,
First of all, I would like to see the wording of the covenant that has the R.V. addressed as for parking. Just because it has not been enforced in the past, does not give it the okay to stay parked out there now.
Once we see the covenant wording, then we can make a better call for you. Do you have a Property manager?

Do you have any enforcement or fineing allowances? That would be helpful for enforceing on this guy. You should not write this letter and sign it yourself. This is a Board action. But you should quote the violation and the covenant in the letter . Florida has very strict fining requirements that you need to follow but I want to see the covenant first. This is easy to justify by your Board but the question will be if he wants to comply.

KenD (Florida)
Posts: 3

Posted:

Donna, Our Covenants state:::

9.4 Vehicles and Repairs
9.4.2 Any camper, recreational vehicle, commercial vehicle, boat and trailer, boat, trailer or other similar vehicle should be located on Owner’s lot so that such is not in plain view from any roadway adjacent to the subject property. Such vehicle should also be placed so that it is not in plain view from neighbors’ property. Screening used to shield the view may include foliage, fencing, enclosed garages or the Owner’s residence so long as such method of screening is approved by the Architectural Control Committee.

No, we do not have prop. mgr. Our Covenants state that the Board can set fines acc. to the following in our Covenants:

10.2. Violations. The Association or lot owner may remedy any other violations of this Declaration or the Rules and Regulations of the Association by injunction or any other lawful means. Additionally the Board of Directors of the Association shall have the right to deny use of the common areas & facilities to any Owner who continually violates any of the restrictions set forth herein, or the Rules and Regulations of the Association. The Board of Directors shall have the right to set up procedures to institute reasonable fines against lot owners who continually violate these Restrictions or the Rules and Regulations of the Association.

And in another para. under Bldg. Violations: "In addition, the Association or any lot owner shall have the right to enforce, by the proceeding at law or equity, all restrictions, conditions, covenants, easements, reservations, liens and charges now or hereafter imposed by the provisions of this declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of right to do so thereafter.

Also pls. advise how to get a board vote when the violating President won't bring it up. Thank you.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Okay Ken,
Thanks for sending your document statements because that makes it easy to see that the offense is clearly obvious and that you do have the ability to enforce the violation. When you do use enforcement, does it come down from the Board or do you have an enforcement committee?

If I did my math correect, you said that the other 4 Board members are knowing that this is a violation and are willing to step up to work on this. 4 is the majority of your 7 member Board. The violating President is not the only person who can bring a motion to the Board.

What would I do? Number 1 is to get proof of the violation by taking a picture of the RV in view. Document the date and get the address in the picture if you can with the RV. Next. you will have to get all of the other R.Vs , including addresses. You must include all of them or it becomes "SELECTIVE ENFORCEMENT" That's a bad thing to do.!!

Then, copy exactly what you sent to us here from your Documents. When you have your next meeting, you are required to post an agenda on the posting. Make sure that you add "Violation report or discussion on violations or R.V. violations" to the agenda. The President cannot deny you a discussion on the RV issue. If he refuses to let you bring it up, call a point of order on him. That means he is violation the meeting Statutes and he must allow you to speak. Quote the covenant violation and ask the Board to vote on sending a violation letter to all of the offenders. Hopefully, the 4 of you will let the other 3 know that you are meaning for this to get resolved.

Now, you will have to follow the State Statutes and your docs as for time frames needed to get compliance . Follow the process and if need be, start to fine. Board member or not, everyone has to follow the same set of rules and bylaws. Good luck. If need be, you can e-mail me at [email protected]

BrianB (California)
Posts: 2,820

Posted:

ken, Donna, others:

I am curious: Ken's covenants use the word "should". In the legal world I live in every day, "should" is a suggestion, and not typically enforceable. "Shall" is the legally enforceable wording. Up until I saw Ken's rules, I hadn't really noticed any CC&R's using "should" as a term.

In Covenants, is there a difference between "should" and "shall"? What's your experience?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Brian,
Yup, one of those oxymorons--

Post subject: Difference between should and shall

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Should expresses a recommendation while shall expresses an action that will take place in the future.
_________________
Test Of English for International Communication

BrianB (California)
Posts: 2,820

Posted:

so in this case, the placement of RV's is simply a suggestion. The president SHOULD do that, but it's not required?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,
I don't agree about this shall and should business.

Paste.
9.4.2 Any camper, recreational vehicle, commercial vehicle, boat and trailer, boat, trailer or other similar vehicle should be located on Owner’s lot so that such is not in plain view from any roadway adjacent to the subject property. Such vehicle should also be placed so that it is not in plain view from neighbors’ property. Screening used to shield the view may include foliage, fencing, enclosed garages or the Owner’s residence so long as such method of screening is approved by the Architectural Control Committee.

************************************************

It says any camper, etc. should be parked on owners lot. Then it goes one to say if it is parked there it should not be in plain view, etc.
and fines and enforcement can be levied. If it is there, it is there, and as such, violates the covenants unless it is screened properly. I take it there is no ARB so the Board becomes the enforcer or a committee appointed by the Board.
*********************************************

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Just like the police enforce the law. No matter if it states the law shall or should be followed. If you break the law, as described you can get arrested. All vehicles shall/should not be parked in the street is saying, don't park on the street, and if you do (should you) park on the street the flying marshmallow dragon will fine your butt 3K and put you in the slammer for a month.

But, and a big but, we may be able to free up up overcrowded cells if we check the records and release anyone arrested that had "should" written in their arrest form.

SusanW1 (Michigan)
Posts: 5,202

Posted:

"Ought to" is a substitute for "should". Your rules are very "subjective" - open to interprtation. Maybe the other Board members don't think it is a violation. The burden of proof might be with you to make your case.

The bigger issue is: "The Board of Directors shall have the right to set up procedures to institute reasonable fines against lot owners who continually violate these Restrictions or the Rules and Regulations of the Association."

Did your board set up these procedures yet?

All Board members should model the very best behavior. Too bad the president is pushing the envelope.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
If it is not a violation, why does it give specifics for how it should be accomplished? It does not say the requirements "should be", it says what the requirements are.

I don't have a problem having covenants up to interpertations, most of them are, it you try hard enough you can make a case for or against anything. This is not the case here.

I am sorry, I'm not picking but I just never saw "ought to" used in any legal documents outlining restrictions or regulations. Do you consider "Ought to" to be descriptive?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Is this from YOUR rules?

9.4.2 Any camper, recreational vehicle, commercial vehicle, boat and trailer, boat, trailer or other similar vehicle should be located on Owner’s lot so that such is not in plain view from any roadway adjacent to the subject property. Such vehicle should also be placed so that it is not in plain view from neighbors’ property. Screening used to shield the view may include foliage, fencing, enclosed garages or the Owner’s residence so long as such method of screening is approved by the Architectural Control Committee.

There is no "must" there - the word "should" is subjective and has the power of "ought to".

DonnaS (Tennessee)
Posts: 5,671

Posted:

Okay Everyone,
Let's get back to the subject of how Ken can address this violation without the shall or should involvement. If this gets as far as needing a legal opinion on the words, the Judge would follow the "INTENT" of the meaning by the Developer. He (the Developer) is the person responsible for the intention of the covenant. Therefore the arguement of the 2 words is not pertinant. (been there, done that on trucks)

Ken needs to follow my reccomendations for getting this before the Board, despite any objection from the violator, the President. Because this has gone on for so long and there are several others in violation, this is going to be quite a struggle for those who want enforcement. That will be his and the supporting residents to decide.

And as a footnote, the wording in all of the covenants needs to be amended so that there is consistancy in the language, some day when a committee has nothing to do because it is soooo boring.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

As you say, it may be sujective, maybe, but I just can't see it.
But there are lots of things that confuse me.

Shall

Main Entry:shall
Pronunciation:sh*l, *shal
Function:verb
Inflected Form:past should \sh*d, *sh*d\ ; present singular & plural shall

used as an auxiliary to express a command, what seems inevitable or likely in the future, simple futurity, or determination

********************************

Should

Main Entry:should
Pronunciation:*sh*d, sh*d

past of SHALL used as an auxiliary to express condition, obligation or propriety, probability, or futurity from a point of view in the past.

********************************

ought

Main Entry:ought
Pronunciation:**t
Function:verbal auxiliary

used to express moral obligation, advisability, natural expectation, or logical consequence

DonnaS (Tennessee)
Posts: 5,671

Posted:

Hi Robert,

No, I am not saying that it is objective. To me the words mean exactly as we have all argued but that is not would happen. As I said, I was in court for 3 days, with just such a mess. The Judge said that the "INTENT" of the covenant was such and such and just because some cookie cutter covenant did not have the one word in the proper tense, does not mean that it was the "INTENTION" of the covenant to mean otherwise.

DonnaS (Tennessee)
Posts: 5,671

Posted:

OOPS!!! I MEANT SUBJECTIVE, NOT objective

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Donna,
The post wasn't directed to you as I posted it and then saw you post.

But I realloy believe the President is violating the covenants.......no doubt about it, and if necessary the courts would consider intent and weigh it heavy.

I do like to see how words that we use commonly are related. Of cource, I forget and go back to being me at the first chance I get.

This particular situation is easy to fix without having to greet you neighbor every day, not so within an association, but you all know that and I also think we know it is sometimes, "whatever it takes," come hell or high water, Mr. President is breaking our laws and that is bad for all of us.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mr. Robert,
I know that you would never ever hollar at moi. This is one of those violators who because of being a Board member, the others will have such a difficult time to get compliance but they have to do the right thing and that is to enforce. But we'll get Ken all fixed up and ready to go.

So to definitions. Documents are usually written by a clerk in an office who more than likely do not read what they are writting. English has so many words that are similar in meaning but if you split hairs, there shows up the difference. Perfect example is my previous post, where I wrote objective and meant subjective. Different meaning but similar in sound and I missed it initially. So it happens in Docs too.

SusanW1 (Michigan)
Posts: 5,202

Posted:

OK - so the guy is guility.

Your CCR's say: "The Board of Directors shall have the right to set up procedures to institute reasonable fines against lot owners who continually violate these Restrictions or the Rules and Regulations of the Association"

Have these "procedures" been set up (written??)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

As to Ken wondering how he can get the issue brought up at a board meeting.
Once the meeting is opened, make a motione that this issue of parking be brought before the Board. Have someone second it, and it has to go to discussion. In the discusion recommend that a survey of all units be made to observe violations. Do the survey, cite the president and anyone else violating the covenant and levy any fine or restrictions allowed in your covenants. Ken, the Board elects the President, the Board can call (majority) for a vote to relieve the president of his duties because of rule violation or replace him. The Board can also (majority of the Board) issued official sanctions as directed by your covenants.

In other words the means is there, the will may not be.

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