Delinquent Dues and Loss of Privileges

Started by DeniseA1 • 6 replies • 2053 views

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DeniseA1 (California)
Posts: 19

Posted:

In our association, we were in excess of $38,000 in delinquent dues/assessments as of March 30, 2008. Has anyone else experienced the need to suspend privileges and/or voting rights of delinquent owners? Also, does the management company need to address the complaints of a disgruntled homeowner who is in foreclosure, delinquent in dues, and has a personal vendetta against another homeowner? The complainer is now complaining that the other homeowner's dog is frequently running loose. I am now on our Board and another Board member requested a hearing, so a violation letter was sent to the "offending" homeowner for a special hearing and possible fine. Basically, my question is does the Board and management company respond to a resident who no longer owns her home--it's now bank-owned--and that resident also has a dog that I personally haved called Animal Contol on--it runs loose while she is home as she leaves her back door and gate open.

BrianB (California)
Posts: 2,820

Posted:

Is that owner renting the house from the bank? If so, the bank is the owner, and you deal with the complaints of the bank. Either that person is the owner, or they are not. If they still own the house, yes, you have a duty to "respond" to a complaint made by them. However, i would absolutely use the response to remind them that they are also in arrears, etc., and that the board is focusing on the bigger fish (the complaining owner) first, then they will focus on the smaller priorities (the people with a dog occasionally loose) later.
The duty is to respond. HOW you respond is up to the board.
I would also ask if your rules cover dogs running loose. If not, then the board has no business getting involved in a loose dog situation.

GlenL (Ohio)
Posts: 5,491

Posted:

Denise when you have the hearing on the loose dog remember under CA law the owner has the right to cross examine the person who is accusing her. As far as suspending voting privileges you can't unless it's in the bylaws or you give notice of it to all H/O's each year. Also before you suspend voting or privileges you must hold a hearing. You can find details at: http://www.davis-stirling.com/index.html

Penalties, such as fines and suspension of privileges, cannot be imposed against a member unless due process has been followed. "Due process" is procedural fairness in the board's decision-making process. When a homeowners' association seeks to enforce the provisions of its CC&R's to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious.

The elements of due process include:

1. Giving the accused notice of the alleged violation;

2. Providing a reasonable opportunity for the person to defend him/herself in executive session;

3. Knowing the identity of the accuser with an opportunity to cross-examine the witness; and

4. Giving the accused an opportunity to examine and refute the evidence.

Studies show that 5 out of 4 people have problems with fractions

DwightT (Idaho)
Posts: 664

Posted:

Denise -

As was mentioned, the Board should respond to any resident complaint. How you respond is up to you. If your CC&Rs address animals running loose and if the dog is running loose, then yes, you should enforce your CC&Rs regardless of who made the complaint. If a Board member can verify that the dog is indeed running loose, then if I remember correctly even under Davis-Stirling that Board member can be the one bringing the complaint so at any hearing, the Board member would be the one that the homeowner can be questioning.

As to suspending privileges, we do. We have a pool in our community and access to the pool is controlled through a security system with gate access codes. If assessments are not paid up, then that homeowner's access code will not be activated. It's amazing how many checks come in after the first day of 90+ degree weather.

However, this is going to create an "interesting" situation this year with the number of bankruptcies and foreclosures going on. Most of the properties in this situation have not paid their dues, so their pool code will not be turned on. Some of these are occupied by renters who have otherwise been good residents. Once the foreclosure process does complete, these people are most likely going to be evicted (the bank doesn't want to be a landlord while they are trying to unload the property). Some of these "renters" have now become squatters since they have stopped making rent payments during the confusion. However, we can't really tell who is a "good" renter caught in a bad situation and who is a "bad" renter taking advantage of the mess. This will probably result in some awkwardness, but in all fairness to the other residents who have paid their debts we can't really enable the code for any property where there is still a balance owed, at least until that balance is cleared from the books by powers beyond our control.

BradP (Kansas)
Posts: 2,640

Posted:

to me it shouldn't matter if someone is 1 month or 1 year behind in payment, if they have a legit complaint it should be listened to. The board should already be working on making them pay anyway.

HaroldS (Arizona)
Posts: 906

Posted:

I agree. I don't believe an HOA can refuse to investigate an alleged violation because it was reported by a delinquent member.
However, I am confused: at first you state the delinquent owner's home is in foreclosure, but later state it is now bank owned. In the first instance, even if it is in foreclosure the owner is still capable of reporting violations. In the second instance, if the bank owns it, why would you even take a violation report from the former owner?

DeniseA1 (California)
Posts: 19

Posted:

Thanks to all who responded..got the inforation I needed!

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