Ignored violation now being enforced

DarylF (Washington)
Posts: 157

Posted:

Our community HOA has for the longest time failed to enforce the CC&R’s. Probably over 2 years for many existing violations. Just recently a new hard nosed person was put in charge of the ACC and sent out violation letters to about half the community. Violations range from fence color and type to plastic sheds and visible propane tanks (which are both not allowed per the CC&Rs).

I read on here recently that if a violation is ignored long enough it probably becomes unenforceable? Is that correct? If so, can someone explain in more detail and possibly provide a link to a law or case history?

Thanks in advance for any help.

FrancescaM (Washington)
Posts: 264

Posted:

Quote:

Posted By DarylF on 02/02/2009 1:16 PM
Our community HOA has for the longest time failed to enforce the CC&R’s. Probably over 2 years for many existing violations. Just recently a new hard nosed person was put in charge of the ACC and sent out violation letters to about half the community. Violations range from fence color and type to plastic sheds and visible propane tanks (which are both not allowed per the CC&Rs).

I read on here recently that if a violation is ignored long enough it probably becomes unenforceable? Is that correct? If so, can someone explain in more detail and possibly provide a link to a law or case history?

Thanks in advance for any help.

Of course one must read the cc&rs and rules to be completely familiar with them and what is enforcable. I will give the example of what happened to me and details of this have been changed.

I joined up mid term on a board vacancy a few years ago. We were taking turns doing walk throughs monthly due to issues with rule ignorance even on our boards behalf. I read the rules, and when a letter was to be sent the rule page # would be cited for reference. ( not ever done before. )

One of our past board members had a really great idea as an addition to her private balcony / yard area that allowed further privacy. However, it clearly states what kind of fencing etc is allowed in our rules. It was clearly written and the ex board member was clearly in violation However, when I brought this up only 1 other board member supported me. The other's thought they "grandfathered this " in as it was up for about 2 years without issues. I read the cc&r's and the rules and the rule for the fencing was erected and voted 5 years prior. The fencing had to come down. The board didn't want to enforce it because Freddy J was a board member in the past year and felt she should be excused. Nothing would sway them.

I asked if I could be granted the same "fencing' and it was DECLINED as it was "against the rules". I contacted my Uncle an atty who was kind enough to draft a letter to the board including pictures for references. He too read the rules and cc&rs and stated thet me his client would appreciate it if the board would allow me the same benefit of this "fencing" as it was clear that the picture he had was "against" our current set of rules.

That was enough for the board to change their mind.... alll of them v oted to decline my request and to enforce the rules universally. What do you know?

it may take research, but individual items may be "grandfathered" in as they were in place before rules were enforced, however, your minutes must reflect board ok with items such as this. FOr example, if the board could of produced minutes that said the other ladies fence as stated above was "ok'd for one reason or another that would suffice, but it has to be documented that this was Okd. Otherwise it's against the rules and all must universally be enforced.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I don't believe in "grandfathering" simply because it would be "hard work" to enforce against something that was not enforced previously.

Please review your state's statutes and your own CC&Rs, but here in our state, there are no "statutes of limitations" for enforcement.

In fact, our CC&Rs allow for the possibility that lack of enforcement might occur from time to time and specifically state that failure to enforce in the past does not mitigate current enforcement.

So the short answer to your question is, "It depends."

You must do your own local research.

I certainly hope that the board can enforce.

I also find it offense that a resident classifies an HOA member who wants to maintain the integrity of the documents and fairly enforce the CC&Rs as "hard nosed."

I find a person like that to be somewhat courageous, considering all the flack from people who don't like to get their wrists slapped that they'll get.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By FrancescaM on 02/02/2009 2:23 PM

Posted By DarylF on 02/02/2009 1:16 PM
Our community HOA has for the longest time failed to enforce the CC&R’s. Probably over 2 years for many existing violations. Just recently a new hard nosed person was put in charge of the ACC and sent out violation letters to about half the community. Violations range from fence color and type to plastic sheds and visible propane tanks (which are both not allowed per the CC&Rs).

I read on here recently that if a violation is ignored long enough it probably becomes unenforceable? Is that correct? If so, can someone explain in more detail and possibly provide a link to a law or case history?

Thanks in advance for any help.

Of course one must read the cc&rs and rules to be completely familiar with them and what is enforcable. I will give the example of what happened to me and details of this have been changed.

I joined up mid term on a board vacancy a few years ago. We were taking turns doing walk throughs monthly due to issues with rule ignorance even on our boards behalf. I read the rules, and when a letter was to be sent the rule page # would be cited for reference. ( not ever done before. )

One of our past board members had a really great idea as an addition to her private balcony / yard area that allowed further privacy. However, it clearly states what kind of fencing etc is allowed in our rules. It was clearly written and the ex board member was clearly in violation However, when I brought this up only 1 other board member supported me. The other's thought they "grandfathered this " in as it was up for about 2 years without issues. I read the cc&r's and the rules and the rule for the fencing was erected and voted 5 years prior. The fencing had to come down. The board didn't want to enforce it because Freddy J was a board member in the past year and felt she should be excused. Nothing would sway them.

I asked if I could be granted the same "fencing' and it was DECLINED as it was "against the rules". I contacted my Uncle an atty who was kind enough to draft a letter to the board including pictures for references. He too read the rules and cc&rs and stated thet me his client would appreciate it if the board would allow me the same benefit of this "fencing" as it was clear that the picture he had was "against" our current set of rules.

That was enough for the board to change their mind.... alll of them v oted to decline my request and to enforce the rules universally. What do you know?

it may take research, but individual items may be "grandfathered" in as they were in place before rules were enforced, however, your minutes must reflect board ok with items such as this. FOr example, if the board could of produced minutes that said the other ladies fence as stated above was "ok'd for one reason or another that would suffice, but it has to be documented that this was Okd. Otherwise it's against the rules and all must universally be enforced.

Did you once post here under the name Nicole?

Just curious.

KirkW1 (Texas)
Posts: 1,665

Posted:

In Texas (like most states), once you know of a violation (or should have known) then a timer starts ticking and eventually you can not take action to enforce the violation. I believe that our laws allow for three years. Thus, if the violation has been in place (and not hidden) for three years there is no legal standing for enforcement. (That isn't to say there is something to keep a person from posturing or even filing suit. Just what the court will enforce.)

When things go for a couple years, then you should decide:
1) Should the rule be changed?
2) Should we instead enforce the rule?

Keep in mind that a single hard nosed person can only take real action if others back him/her up.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I will be watching this post, with interest. Our board has ignored violations for years, NOW there is a real problem, with violating members claiming, "but others have been allowed to do it for years."

What a mess!!

AnnaD2 (Florida)
Posts: 960

Posted:

Our current board, which has been the same members going on two terms now, got together, we possesed something that no other board had: a BACKBONE and a SPINE. We sent out letters to each and every owner and resident explaining that there would be a strict process for rule enforcement and things that were ignored in the past would now become enforced. Everyone also received a new copy of all the rules and regulations, so no one could say they didn't receive them. The copies were hand delivered and people had to sign for them. The off-site owners were sent certified so we knew they'd received them. It was a bit of an expense to do that, but well worth it.

It took many, many months of rule violation letters and lots of backlash from people breaking the rules; but after a couple of letters from our attorney for those digging in their heels EVERYONE is now in compliance.

Of course, rule violations still occur, but those are handled as they arise. It was a massive effort to get back on track and we made ourselves not too popular with some people. But it was those people we had to remind: WE (the Board) can be sued for NOT enforcing the rules; as one rule breaker so kindly reminded us.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By AnnaD2 on 02/03/2009 7:10 AM
Our current board, which has been the same members going on two terms now, got together, we possesed something that no other board had: a BACKBONE and a SPINE. We sent out letters to each and every owner and resident explaining that there would be a strict process for rule enforcement and things that were ignored in the past would now become enforced. Everyone also received a new copy of all the rules and regulations, so no one could say they didn't receive them. The copies were hand delivered and people had to sign for them. The off-site owners were sent certified so we knew they'd received them. It was a bit of an expense to do that, but well worth it.

It took many, many months of rule violation letters and lots of backlash from people breaking the rules; but after a couple of letters from our attorney for those digging in their heels EVERYONE is now in compliance.

Of course, rule violations still occur, but those are handled as they arise. It was a massive effort to get back on track and we made ourselves not too popular with some people. But it was those people we had to remind: WE (the Board) can be sued for NOT enforcing the rules; as one rule breaker so kindly reminded us.

Good job!

As I said, one man's "hard nose" is another man's "backbone."

Consistency is the key.

As is communication. I like that you guys hand-delivered . . . it was probably a pain, but it is an impressive "extra mile."

BrianB (California)
Posts: 2,820

Posted:

good job Anna... at some point, a line must be drawn as fairly as possible, and the HOA must move forward. Sounds like yours did it right.

DarylF (Washington)
Posts: 157

Posted:

Please don't take offense, the "hard nosed" person takes pride in being hard nosed and would be honored I called him that! Maybe he is doing the right thing, but very few others have so he stands out and thus gets a nickname.

As for the rest of the board being on board with this, see my other post. He runs the ACC, it operates independently of the board. The board didn't even know the violation letters went out.

I know the board/ACC can try to enforce the rules, and can send fines. My question is, if someone fights it in court do they have a good case? I'm not trying to get away with anything, I just want to prevent us from getting into a bunch of costly lawsuits, ending up on the front page of the news and backrupting the HOA. I'm worried about my property value!

When you send 40 (just a guess) letters out telling people they need to take things down or strip and re stain a fence, odds are pretty good a few will object.

I looked around for laws in my state, but I'm not an attorney and spent a couple hours with no luck finding anything relevant.

Thanks

MicheleD (Kentucky)
Posts: 4,491

Posted:

Daryl:

Our board does not have to review each and every violation notice that goes out.

To what end? The violations need simply be confirmed (meaning that if a violation is reported, a member of the committee must confirm that a violation exists).

To drag things out by waiting each month for the board to "review" violation notices sort of defeats the purpose of timely, reasonable and fair notice.

It seems to me that your committee is doing its job.

If the people receiving the notices are in violation, they may decide to push back and take it to court, but the odds are they risk also having to pay the Association's attorney fees if they don't win.

And, if the violation is legitimate then that's a pretty high risk.

It used to be many many years ago that people could pull the "selective enforcement" bunny out of the hat, but that is less and less a defense any more as HOAs and COAs become more widespread and are now establishing pretty solid track records.

If your committee is, in fact, sending out violation notices diligently and moving to enforce consistently, then it has a pretty solid position should someone want to scream "foul."

The board can concentrate on its business and let the ARC/violation committee do its job.

DarylF (Washington)
Posts: 157

Posted:

Quote:

Posted By MicheleD on 02/03/2009 8:03 AM
To what end? The violations need simply be confirmed (meaning that if a violation is reported, a member of the committee must confirm that a violation exists).

To drag things out by waiting each month for the board to "review" violation notices sort of defeats the purpose of timely, reasonable and fair notice.

It seems to me that your committee is doing its job.

I never said the board should review them? Our committee is doing their job and seem to be doing a really good job. You seem to be very defensive? I'm trying to stay neutral and just gather some info to avoid problems. I'm not taking any sides on this issue.

Thanks for your input.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I am staying neutral.

I think I asked a legitimate question, and there was no tone there, just a question.

I'm not sure what oversight you think the board should be doing.

If you want the board to be aware, at what stage do you feel it is needed?

I'm not a fan of boards who micromanage.

If there were not committee, that would be one thing.

But there is, and it appears they have a fairly decent process, and it appears to be in line with your governing documents.

A board can't be timid when enforcing the documents.

If we shuddered and quaked at each inference that a lawsuit would ensue, we'd never be able to enforce any violations.

So what you might read into my responses is really more of a confusion.

I'm not exactly sure what you think the "right" way of doing this is?

In fact, in this country there exists an entire continuum of "correct" procedures and processes for CC&R violation enforcement. What you have described is fairly common in some areas, though in some, as indicated here, not so much.

But I'm still somewhat confused as to what you think would be a better, more timely, fairer, efficient way to handle violation notices?

(Oh, we do have a monthly Violation Enforcement Status report that we provide to the full board. We put our violation system on a database a few years ago.)

DwightT (Idaho)
Posts: 664

Posted:

Quote:

Posted By DarylF on 02/03/2009 7:53 AM

As for the rest of the board being on board with this, see my other post. He runs the ACC, it operates independently of the board. The board didn't even know the violation letters went out.

Daryl - To me (and probably to Michele) this paragraph implies that you expected the Board to review the letters before they were sent out. I agree with Michelle on this. There shouldn't be a need for the Board to do such a review. The ACC should have been appointed by the Board, with the authority to send out the noices.

Quote:

I know the board/ACC can try to enforce the rules, and can send fines. My question is, if someone fights it in court do they have a good case? I'm not trying to get away with anything, I just want to prevent us from getting into a bunch of costly lawsuits, ending up on the front page of the news and backrupting the HOA. I'm worried about my property value!

When you send 40 (just a guess) letters out telling people they need to take things down or strip and re stain a fence, odds are pretty good a few will object.

Of course some will object, but that doesn't mean that they immediately go to court. They should have the opportunity to appeal the violation notice and/or fine to the Board. That will give the Board the opportunity to take control in the name of the Association before things have to get legal. (BTW: In my opinion, the appeal process is why the ACC SHOULD be independent of the Board). The Board can decide that the homeowner has a valid case and waive the violation, thus avoiding court. Or they can agree with the ACC and let the violation stand, in which case the homeowner can decide if he wants to try his luck in court. Either way the it is still the Board (as the elected representatives of the HOA) who is making the ultimate decision.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dwight,
The reason my documents are set up with the ARC committee consisting of NON BOARD members (with a Board member as Liaison) is that in the event of an appeal from an applicant, the applicant can appeal to the Board for a review. Now, IF the Board member sits on the ARC AND sits on the Board, said Board/ARC member has the ability to vote 2 times against the applicant. Therefore, it is double jeopardy or whatever the legal term is. My CC&Rs clearly states that the ARC is made up of non Board members who preferrably have knowledge of codes, landscape, architectural and construction or design skills. It's not required but we seem to find these people in the community. I think that this particular covenant which describes the ARC is rather good.

DarylF (Washington)
Posts: 157

Posted:

When no warning letters go out for well over a year, and then half the neighborhood gets warning letters, I'd think it would be nice if the ACC at least gave the board a heads up so they are not blindsided. Basic communication within a cooperation? So yes, I am shocked the board had no notification on the violation letters. However, under normal circumstances I agree that there is no need to get board approval before sending out a violation and I did not intend to imply that. So maybe that's the tone that came across. Sorry for any confusion.

Anyway, what I'm looking for is case history or state law that trumps what is in the CC&Rs regarding rules that have gone unenforced. If there are none then it's easy.

And lesson to new HOA's: STAY ON TOP OF YOUR ENFORCEMENTS FROM DAY 1!

MicheleD (Kentucky)
Posts: 4,491

Posted:

In our state there is none.

Our CC&Rs only have the "statute of limitations" that exist in the governing documents.

That limitation is: none.

Of course other states do have such things.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Our docs specifically give the BOD a pass on enforcing rules if it chooses, then enforce them later, or in regards to "new" offenders. Cool.