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Violation of 12 month leasing

Started by MelissaM4 • 18 replies • 1123 views

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MelissaM4 (Pennsylvania)
Posts: 27
Posted:
I have on homeowner who is leasing her three bedroom townhome for less than 12 month lease agreements. She is leasing each of the three bedrooms to people she finds off of the internet; they stay for 5-6 months and leave.

Few issues with this:

1. She is in violation of our Declaration, which states all homeowners sall be permitted to lease the dwelling, for a period not less than 12 months.
- she has not provided us with copies of the lease
- she has not proven to us that copies of the HOA docs were given to the tenants

2. There are homeowners that are concerned with the safety of short term residents

3. There is a parking situation too; the developer and township have designed our community to have 2 parking spaces per home. Three bedrooms being rented equalls a minimum of three cars for three parking spaces.

4. The homeowners does pay her HOA dues on time

5. The homeowner does not respond to HOA requests of lease information

6. the homeowner is not in violation of the township's ordiance, which states the definition of "Family" seems to say you can have 1) one or more "related" persons and no more than two boarders (renters) living together or 2) not more than three unrelated people living together.

Any thoughts or ideas on how to handle this situation would be freatly appreciated.

Thank you as always!
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Based on the information and facts you provided, Melissa, I would strongly suggest to you that seeking legal assistance from the association's attorney at this time is not over reacting. It may be that a letter from the attorney is all that is necessary to correct the situation.

But if not, it may be necessary for the association to file for injunctive relief which will enable you to obtain copies of any rental/leasing documents. And you might also seek attorney's fees and court costs. However, expect it to be a long and drawn out process.

I am loathe to involved lawyers, except as a last resort, but it appears that you have exhausted all your normal avenues for solution.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Melissa,
Do your documents allow for fining for violations of the restrictions? Other than that, you have not told us if you have that right to enforce. It seems that they are breaking all of your restrictions and you need to get control of this violator asap.
MelissaM4 (Pennsylvania)
Posts: 27
Posted:
My docs do not say anything about fines [unfortuantly].
MaryA1 (Arizona)
Posts: 7,043
Posted:
Melissa,

Am I understanding this correctly? This person is renting out her 3-br townhouse like it was an apartment with 3 units??? IMO, the board should be rethinking their rental policy. Only 1 tenant per property should be allowed. If the rental policy was adopted by the BOD as a rule of the assn it should carry the same weight of enforcement as all the other restrictions contained in the declaration. This means fining, or whatever remedies are allowed for violations. But, seriously, even more important is to revisit the rental policy pertaining to how many tenants may rent a property at one time.
MelissaM4 (Pennsylvania)
Posts: 27
Posted:
There is a policy for leasing but the homeowner is not abiding by it. One problem we have with our docs is it talks nothing about what we can do to enforce the rules and regulations. It sounds like we need an amendment to our docs talking about enforcement.

Does anyone have a copy of their enforcement section of their docs I could use for reference? What are the standard fines implemented?
MicheleD (Kentucky)
Posts: 4,491
Posted:
Who told you she was not violating zoning ordinances? I think our local zoning office would have issues with 3 people sub-leasing a single unit.

If nothing else, it appears she is running a business. . .

GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
It appears that the real question you have is not about the renters at all, but about the enforcement by the association. The rental issue is but one example of a more fundamental issue in your mind, it appears.

I would think that your covenants might have language similar to the following:
    Violation or threatened violation of these covenants and restrictions shall be grounds for an action by the Association, any person or entity having any right, title or interest in the Real Estate (or any part thereof), or any person or entity having any right, title or interest in a Lot which is now or hereafter made subject to the Declaration, and all persons or entities claiming under them, against the person or entity violating or threatening to violate any such covenants or restrictions.

    Available relief in any such action shall include recovery of damages or other sums due for such violation, injunctive relief against any such violation or threatened violation, declaratory relief, and the recovery of costs and attorneys' fees incurred by any party successfully enforcing these covenants and restrictions; provided, however, that the Association shall be liable for damages of any kind to any person for failing to enforce or carry out such covenants or restrictions.


There is also the notion of implied enforcement powers as well. Such powers need not be spelled out in specific terms to be applicable.

I advocate policy governance. A key step in the process is for the board of directors to establish a written policy regarding steps to take and timelines to follow in the enforcement process.

GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Correction:
    provided, however, that the Association shall not be liable for damages of any kind to any person for failing to enforce or carry out such covenants or restrictions.

RobertR1 (South Carolina)
Posts: 5,164
Posted:
To all,
What have I missed here?
Melissa, what are you saying when you start your post, "I have an owner. etc?" Are you asking this as a Board Member or what? Do you have a M/C? If you are an HO have you run all this by the Board?
What is the Boards response to all of this. Why can't the Board charge this HO with violating the covenants? If it is dowqn to that and all else fails, as George says, it is not only smart to hire legal help it is the responsibility of the Board to do this. I would go so far as to say the Board is violating the Fiduciary mandate if they don't. They may not win in court who knows, but I suspect they would and even if they lose it would put the Board on notice they should get their house in order and re-write some documents, with legal help, that had some teeth in them.
Nothing will be accomplished with out action that brings change.
MelissaM4 (Pennsylvania)
Posts: 27
Posted:
Robert,

I am the President of a new BOD. The docs that were given to us by the previous Declarant (who went bankrupt Jan 08) are very vague. The current BOD and HOA are teaching ourselves on how to run the HOA, which has been going very well for a new community. Our docs do have some language stating the HOA can obviously enforce the rules, but to what extent is my question? I am hearing fines and legal counsel. I am going to look into an ammendment to our current docs to implement a action to be taken and a timeline.

Thank you!
Melissa
JosephW (Michigan)
Posts: 882
Posted:
Under PA law, you can:

11) Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association. (http://www.pacondolaw.com/upca/upca5302.html)

I would suggest, since your association appears to be new at this, that you retain legal counsel to help walk you through this first one, to make sure you follow any requirement your documents or the state law imposes, and to help you set up procedures to follow in the future.

Since the only other option, if the owner refuses to comply with the boards request, or ignores fines, is litigation, you might as well make sure you handle it right, from the beginning.

Joe
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SusanW1 (Michigan)
Posts: 5,202
Posted:
WHAT does the CCRs say about leasing?

You say that she cannot (will not?) provide a lease, but has not violated local ordinances for having 3 unrelated people in the home. Sure these aren't relatives of hers?

I am assuming that SHE is not living in the home, right?

From what you have stated, the violation that she has broken is 1) not providing a rental agreements (lease) to the Board and 2) having too many cars for alloted spaces.

I can't believe that CCRs are written without any process for violations.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Melissa,
All the folks that have offered advise on this thread should be listened to and with serious consideration.

I suspect they also agree you are due for further trouble if you don't clarify your CC&R's. I am one of the first to say the CC&R's can be suspect under the best of conditions, but that is what we all have to work with.
I would also check your initial record in the courthouse and see if the papers filed are what you all have and you should have a mirror image. Make sure you are registered with the state and any fees are paid. Make sure if there is a state law or statute about condos or HOAs you have a copy. If your condo is inside city limits, you want their regulations, you will want any county regulation that apply and certainly any federal laws that impinge on your association. You want to look for any regulations that govern rental units and occupancy levels. Check the courthouse to see if when your condos was registered to see if occupancy restrictions were recorded for your condo.

You will get thru this, all it takes is time and patience and no desire for praise.
SusanW1 (Michigan)
Posts: 5,202
Posted:

"You will get thru this, all it takes is time and patience and no desire for praise."

Robert - I love this!!
MelissaM4 (Pennsylvania)
Posts: 27
Posted:
Thank you all for your help and advise! We have a BOD mtg in a few weeks and will talk about your comments.

Thank you again!

Melissa
GlenL (Ohio)
Posts: 5,491
Posted:
One thing else you might check is ask the county if rental property must be registered with the state. I know in OH all landlords are required to register their rental properties with the state through the County Clerk's office in each county. I don't know if PA requires it but I understand more and more states are looking into it; makes it easier to catch the ones not reporting their rental income to the state for tax purposes.
Studies show that 5 out of 4 people have problems with fractions
MaryA1 (Arizona)
Posts: 7,043
Posted:
I don't know that there is a state law in AZ, but I do know the co in which I live has a requirement to notify them if your property is being rented. The property tax rates are about double for rentals. Also, some cities require a business license too.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By MaryA1 on 01/05/2009 1:14 PM
I don't know that there is a state law in AZ, but I do know the co in which I live has a requirement to notify them if your property is being rented. The property tax rates are about double for rentals. Also, some cities require a business license too.

. . . the insurance company might appreciate knowing as well. I do know that if property is used for rental, the insurance premium is different.

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