Litigious/Nuisance Homeowner

In our very beautiful community, we have one homeowner who, due to obesity, has nothing better to do with time than to write demanding letters, criticize every move our Board makes, tell the Association how to handle everything and, of course, threaten a lawsuit if the demands are not met. It will not be surprising if the Board decides to step down, and the employees quit, which will be a tragedy as the current Board is one of the best we have ever had - taking care of problems that we have had years, improving the safety of the community, putting in hours of volunteer time to see that everything is taken care of This homeowner even acted as if he had the authority to determine who could serve on our Board of Directors going so far as to write a letter to a potential member of the Board informing this person they could not serve. We had to pay our attorney to get an answer to this matter. This homeowner demands personal notic of meetings. All other residents are notified by our postings and notices on our TV channel. This homeowner claims his "disability" does not allow him to leave home - although his wife has no problem coming to meetings! This homeowner threatens lawsuits if his demands are not made. The vast majority of our residents would like to see this homeowner removed from our community, but at least ignored as to his constant demands, threats, intimidation, and nuisance behavior. Our attorney has offered to help us file a suit against him USING his disability against him, with the assistant of the Federal laws, but we are trying to conserve our finances in the present economic condition. What can we do?

John's answer exhibits uncommon common sense. Ignore him. Follow your bylaws and covenants and let the chips fall. Be kind, firm and fair. Courts frown on frivolous law suits.

Judi:

Every property is lucky enough to have one or more of these folks. How boring would things be if everyone just minded their own business and supported the Board whenever possible???

And sometimes due to medical or physical issues which have nothing to do with the property or the Board this brings out the worst in people. Miserable people sometimes become miserable when their lives become overwhelming and their anger gets the best of them. You just have to admire folks like this who bring such a positive presence to all they meet!

As to the threats of lawsuits. Most people will make threats with that which they themselves are most thretened by. Many people fear being dragged into court, when actually it is no big deal. Get your lawyer and file your paperwork and we will be there when required.

As to the suggestion this gentleman might have trouble finding an attorney my thoughts, hardly. There is always some lawyer sitting in his empty office willing to take on a client with $$$$$. In today's world he won't need to look very far.
Afterall lawyers don't need to agree or believe their client is in the right just that their check will clear.

As suggested and I would agree the Board should continue business as usual with no special treatment or accomodations for your hefty friend.

As to his threats my position would be put up or shut up.

An empty barrel makes the most noise. He needs to be made to understand the Board will not operate out of fear, concern, or regard to his threats or actions.

Good luck and let us know how you make out.

Judi,

Another thought. Keep copies of any letters or email that he sends.

WHERE are all these threats and accusations and misbehavin' taking place? At the Board meeting? Then your presiding officer needs to learn how to call a member "out of order" and stop all this foolishness, messiness and mayhem! Any speaker should be timed. Off subject rantings should be identified and the speaker notified that this kind of behavior is not tolerated at meetings. Behavior detrimental to the meeting should be indentified and not tolerated. Warn him or her once, then eject him from the meeting. Motion to barr him from future meetings with a motion to censure.

If these rantings are in writing, then ignore it.

Well, I didn't know if he was doing this by phone or sending the wife with his messages. If he's doing all this with letters, they can be acknowledged simply by the minutes stating something like, "Letter frm Mr. X complaining about the XYZZZ, No action taken."

His letters can be ignored - but I would be sure that his "requests" (i.e. demands) are not things guaranteed by state statues and/or other documents, i.e. wanting to see minutes, financial reports, etc.

I found this article regarding owners who think they should sue their homeowners association.

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If you are like most property owners, you belong to a homeowner association (HOA), which exists to enforce a declaration of restrictive covenants, by-laws and rules. HOAs play an important role in maintaining community standards, but what happens when an owner feels that the HOA is exercising its power too broadly? Factors for a homeowner to consider carefully before commencing litigation against his HOA include the following:

• The homeowner must incur his own attorney fees and costs in any dispute, while an HOA can spread those expenses among all its members.

• In addition to paying his own expenses, a homeowner will have to pay his share of the HOA’s litigation expenses in the form of assessments.

• An HOA will receive the benefit of a “free” defense provided by insurance, which can be a disincentive to the HOA settling a dispute.

• In the event that a homeowner obtains a judgment against his HOA, the HOA can potentially assess the homeowner a share of what it is required to pay the homeowner in damages or even assess the homeowner for the entire judgment.

• The law protects directors of an HOA from individual liability. This limitation on liability is intended to encourage owners to participate in HOA governance.

• Directors of an HOA are not liable for conflicts of interest (such as contracting on behalf of the HOA with a company that they own) if the potential conflict was adequately disclosed and the deal is otherwise fair.

• HOAs can require a homeowner to submit his dispute to mediation or arbitration, delaying his ability to get a “day in court.”

Although HOAs seem to act like tiny governments, courts have rejected the idea that owners can challenge HOAs for violating Constitutional rights. Instead, courts have found that an HOA’s declaration, by-laws and rules are like a contract agreed to by the owners when they purchase their properties. As result, the homeowner should review the documents carefully before filing a lawsuit.

A Court of Appeals recently considered a declaration that specifically permitted caretaker residences and guest houses. When a majority of the owners voted on an amendment banning guest houses, an owner filed a suit alleging that the HOA violated his constitutional rights. The court rejected those claims and used principles of contract law to decide that the amendment was enforceable.

This decision suggests that rights a homeowner thought were assured when he purchased his property can be taken away. As further examples, one HOA recently banned short-term rentals, even though an owner had rented out his property for years and relied on this source of income.

The realties of HOA law dictate a homeowner should consider carefully before commencing litigation against his HOA. When a homeowner takes a minority position on a given issue, the law often does not provide meaningful safeguards to protect the homeowner’s expectations. Often the best approach is diplomacy, or if enough owners are aggrieved, they can “vote to enforce the issue(s).

Well, in many jurisdictions, HOAs would not be able to engage or enforce such a ban legally, unless 100% of the membership votes to allow the ban OR homes that are currently rentals or leasings are grandfathered in, so this might be a poor example.

For example, after a lengthy legal review here in our HOA, we could ban rentals without the 100% vote, but we have about 6 or 7 properties that are rented out.

That being the case, those properties could continue as rentals, but no more could.

However, if any of those homes become vacant for a period of 12 months, then it will revert to a non-rentable property.

The key would be determining exactly how long a rental has been vacant or not under a rental agreement.

That might be hard for us to do.

At any rate, we have abandoned the idea of banning rentals.

We have paid greater attention, instead, to enforcing the CC&Rs against the landlords.

In the end, they are the ones ultimately responsible for the property remaining in compliance.

Mary would you be willing to share your rental policy? We need to adopt one as we are getting more and more rentals.

Thanks!

Karen,

I've pasted our rental policy below. The BOD had been requiring a criminal background check on renters, but on the advice of our attorney this practice has been stopped. Aside from the fact that the HOA has no police power and no access to criminal records, the attorney stated the HOA would be liable if a renter committed a crime if the HOA dictate to whom the home can be rented. The board may suggest a criminal background check be undertaken, but should not require. One argument against this practice is, "was the property owner subjected to a background check b/4 purchasing their property?"

SECTION 8
RENTALRULES
Preamble: The Board of Directors sets high standards for the Association's
appearance in Arrowhead Ranch Phase Ill Community Association
("Association"). The goals for the appearance of the properties are well maintained homes and common areas and to implement regulations to
secure a crime free neighborhood for families and their guests. Residents in
the Association take pride in their community. Customarily, investment
properties are less attended to than owner occupied homes. Tenants do not
always share the communities high standards created to improve and protect
property values. In an effort to maintain these standards, the Board of
Directors has implemented the following rules for rental units. Owners and
their Tenants shall also comply with all the Association's rules and other
Community Documents. The Association shall impose monetary penalties
assessed against the Owner's unit for violations of the Rules and the
Community Documents. Compliance with these Rental Rules and Community
Documents is a vital part of the Association's success as a crime free
neighborhood. Each Owner who rents a unit within the Association must
comply with the Rental Rules and assist in our goal of a crime free
neighborhood. The Association seeks everyone's cooperation in making the
community a desirable place to live.

1. To help Owners make the right decision regarding their rental applicants, all
Owners are required to conduct a criminal background check on their
applicants.
2. The Owner shall notify the Board of Directors ("Board") in writing within five (5)
days of the effective date of executing or renewing a lease.
3. The Owner shall furnish the Board with a copy of the signed lease and any
renewals or revisions along with a copy of the results of the criminal background
check within fifteen (15) days of signing the lease, renewal or revision.
4. Written leases are required.
5. All leases must restrict occupancy to no more than three unrelated persons or a
single family.
6. The Owner shall furnish the Board with a Rental Control Agreement Form
certifying that the Owner has furnished the tenant with copies of the Community
Documents; that the tenant has agreed to be bound by the Community
Documents; and that the Owner accepts responsibility for the tenants' violations
of the Community Documents. A copy of the Residential Control Agreement
Form is included in the Rental Packet available through the Associations
Management Company. The Community Documents consist of the CC&Rs,
Rules and Architectural Guidelines. The Owner may contact the Associations
Management Company for a complete Rental Packet containing these
documents.
7. Owners are required to provide the Board with a Crime Free Lease Addendum,
signed by the Owner and the tenant. A copy of the Crime Free Addendum is
included in the Rental Packet available through the Associations Management
Company.
8. In Compliance with City of Glendale, Section 21, an Owner must have a City of
Glendale sales tax license for Residential Rental Properties.
9. In Compliance with the State of Arizona, Notification of Arizona Residential
Rental Property - pursuant to A.R.S. 33-1901 and 33-1902, an owner of a
residential rental property shall maintain with the Assessor in the County where
the property is located the following
a.If the property is owned by a corporation, limited liability company,
partnership, limited partnership, trust or real estate investment trust you
must advise the Assessor of the name, address and telephone number
of the business entity and the statutory agent, if applicable.
b. If you are an out-of-state owner of a residential property, you shall
designate and record with the County Assessor a statutory agent who
lives in this state and who will accept legal service on behalf of the
owner. Per the State of Arizona, a person who fails to comply with
any provision of this shall be assessed a civil penaltv of one
thousand dollars, plus an additional one hundred dollars for each
month after the date of the original violation until compliance
occurs.
c. The State Application for "Notification of Arizona Residential Rental
Property" is included in the Rental Packet available through the
Associations Management Company or via www.maricopa.gov