Impact of not fining

This is somewhat hypothetical since I have changed names/places to simplify some points and to protect those involved.

Assume you have 2 sections of homes (single family with reasonable sized lots – HOA controlled). There are approximately 100 homes in both section A and section B. As with some urban developments, there is a city sidewalk that runs across the homeowner’s lot and thus you have a 6 foot section of the lot that is between the sidewalk and the street curb. That 6 foot section is the property of the homeowner. The CC&Rs and resulting landscape guidelines require a specific type of plant to be planted there by the homeowner and maintained by the homeowner. Again, there are rules that clearly define that the homeowner is responsible for upkeep and if they do not, then the well defined process of fining is started.

About 3 years ago, a number of the plants in section A were dying. The HOA board determined (for reasons that are too complicated and not important) to try to get the developer to replace the plants for section A. The BOD made a motion to exempt the homeowners in section A from the fines for the first 4 months with the justification that the developer would quickly pay to have the plants replaced.

Fast forward those 3 years. The motion to exempt section A was never renewed after the first 4 months. The developer balked at any settlement and the discussion has been going on since. About a year ago, the BOD made public statements (newsletter, meetings) that shortly the situation will be resolved and the developer will pay for the plants. The developer is now bankrupt and there is very little chance the developer will do anything even it had made some verbal promises to help.

With this background, there are 2 questions that I am asking for opinions:

1. Since section A has not been fined for something that is clearly a violation for at least 2 ½ years, is there a time limit at which they are granted immunity since it was never cited?
2. Do the people in section B have the right to claim any type of discriminatory process if they get a fine for a missing plant since section A people are not being fined?

Donna, I am trying to stay away from the "why they died" issue. Both sections had landscapers that put in the plants and presumbably had some limited short term warranty to replace.

The point is that both sections have the same responsibility to maintain the plants no matter what the cause.

Just to clarify, the developer never said they were going to replace anything. They were in discussions with the BOD about the issue. IMHO, the developer was only doing something as a gesture of good will, not as a result of admitting liability. Remember, the developer did not put in the plants to begin with. Also not all of section A died, but most did.

Mary, would it make any difference in your conclusion on section A if both sections were told (and in all the rules) that they had to take care of their plants? Only after a 6 month period did the issue with the developer come up. In other words, both sections started on the same rules for a period before anything was even thought about relative to the developer. Everyone knew from the beginning that they were responsible for the plants.

Robert, I'll answer because I had this in my HOA. Yes, it makes a difference. Yes, everyone new that they are responsible for the plant care.

Think about this. Section A. Do you think that most of the H.Os there ignore their plant care and that is why so many of them died? NO!! There was something wrong with them. It sometimes takes 6 months for plants that are improperly planted or diseased or rotten soil prep, to die.

I know that you don't like this answer but I said it above, there are 2 different issues here. Section A and section B. You did not answer my questions about the seperate sections. Are they different ages, could have been different landscape installers or growers. There are several factors to consider and not to blanket "FINE" everyone with dead plants. The history of section A warrants that.

Donna,

Robert will correct me if I'm wrong, but I don't believe the basic issue is dead plants. The issue is not removing the dead plants. The members are resp for maintaining the areas, so if and when the plants die they must be taken out and replaced. If not, then the owner is fined.

Donna, sorry I didn’t mean to not answer your question. I would have to say that “probably” it is the same soil since the two sections are just separated by a street and all of the area started from the same base. I am sure there was some fill dirt brought in, but it would have been the same for both sections. The sections overlap in having houses built about the same time. I am sure there are differences as there were different landscape companies used. Section A had one company do the landscaping before the house was occupied and section B usually had the landscaping done after the house was sold. Please remember there was a period of time when both sections were treated equally and there was no talk about the developer coming into the picture. Of course I would not suggest that section A be fined immediately once they are told of the outcome.

Mary is correct.

The only questions are about what is a fair treatment of the section A people and section B. Are they really separate issues? It is the old statement that you fine me but you never fined my neighbor. If the rules say you must be fined if you don’t replace your dead plants and there is no board decision to formally excuse you, then why should section A get away with not following the rules when the same rule is enforced in section B.

The answer may actually be that the BOD made an implicit (though not accurate) excuse for section A by making unfounded statements that the developer was going to correct the problem. This action may take away any rationale why section B should be upset that they are being fined when they see no action in section A.

Also, does the concept of latches come into play for section A. Having not fined this group for several years, though the rule is enforceable, give section A any latitude in not replacing the plants in the future.

Donna, just to be sure I understand what you suggested. Are you saying that both section A and B should not have any fines until after a certain date or do you mean this just for section A?

Robert,

I was thinking the same thing Donna is proposing. Give both sections a bye until a certain date. However, not knowing if the Sec B members have been or are complaining about being fined when the Sec A members are not, I can't really state that opinion. If the Sec B members aren't causing any problems with them being fined then let them out of the picture. However, if they're causing a stir then bring them into the picture by giving both sections a grace period. But, keep in mind that by doing it this way you may also start receiving complaints from Section B members who have been fined during the 3-yr period. Frankly, it's a real can of worms! Some BODs just don't understand what problems they cause!!!

Robert,

Well, if that's the case then I would just leave Sec B out of the whole mess. Continue to fine them if they don't hold up their end of the bargain. And let Sec A know they're going to have to start holding up their end of the bargain but give them a grace little period. I hope the board has learned a lesson from this.

As long as the "how the plants died" is off limits, then this whole thing is utter non-sense. Here are some thoughts though:

1) You can not assume that fill dirt is uniformly distributed. As an example 25% of my neighborhood used to be in a flood zone and was filled.

2) You can not assume that fill dirt is uniform. In this area, when one needs fill dirt it will be a combination of dirt moved from another area within the development, and dirt that other developments are removing. And don't believe for a moment that a developer would bother to try and mix the dirt up.

3) The fact they tried to get the developer to pony up for plants tells me that either they believe something was done wrong, or they are incredibly cheap and want a handout. But if a high number of the plants died, then something is wrong. Replacing the plants with like kinds will be futile if nothing else happens. Do the world (and your neighborhood) a favor and change the rules for something that won't die.

4) Since this has drug on for 2.5 years, you should at least give people a good three to six months to come into compliance now.

5) Any time a plant dies you should give people a reasonable time frame to replace the plants.

Robert,

I don't think so! My board members don't let any grass grow under their feet.

If you're in the Phx area you should suggest that your board members check out the HOA classes being offered by many of the cities in the Valley. Glendale has a great HOA Training Academy. I attended the inaugrual class a number of years ago. And much to my surprise I even learned a few things!

I have tried to get them to go for years. I went a number of years ago and I also learned a lot, maybe too much. It is hard to have the knowledge of what should be done when 6 other people don't have a clue and aren't really interested in learning. Too many people who believe that the way to do things is based on the way we have done things for years.

I agree, Mary. The entire area from the sidewalk to the sewer ditch is "private" property, but also has a utilities easement.

In any case, I thought the HOA got involved because they are the "enforcers" of the governing documents and must have felt, as someone else above indicated, that there was a problem with either the installation or the type of plants that were made for that area.

In addition, I would also find it strange if the documents do not at some point give the developer and/or his assigns (such as a transitioned HOA board) the right to enter the property to correct various covenant violations.

Mary, believe it or not, the sidewalk is on private property. The homeowner's lot goes from the back to the street curb. The city planners wanted it this way so the sidewalk would not be right at the curb. I would assume the city has an easement for the sidewalk. My lot turns out to not be this way since I am on a cul de sac and don't have that strip due to the curve so I am only guessing.

The HOA many times has told the homeowners about their responsibility to maintain the little section of land.

Michele - if you take your logic about the HOA being an enforcer and thus the HOA should get involved, then wouldn't that imply that if rules state you have to have curtains on the street facing windows (just an example) then should the HOA get a decorator in to put up the curtains? I don't think so. Also, I guarantee you there is no provision for the HOA to enter the property to fix problems. That is called trespassing. Without very specific circumstances HOAs in this area are told to stay off.

Robert,
My Florida home was set up the ame way. Owner has responsibility all the way to the curb for repair and replacement of landscape and grass but the sidewalk was common property.(ours was not city but HOA owned pavers which we were responsible to maintain and seal)

Te means of development is not much different from here. The thing is that fill dirt is taken from wherever it is cheapest. Now at least in this area that means it could be of varying content.

At any rate, if there is a high plant mortality rate then I would start offering alternatives that will do well. Then again, I would never live in a neighborhood where there wasn't variety in plants adorning the homes. Then again in our area that strip is typically only filled with grass. (Though perhaps your strip is wider. Ours is rarely more then about four or five feet wide an often smaller.)

Remember, I stated that it really doesn’t make any difference now, what is is. I probably should not have even added this last tidbit of information.

Michele, not only do I agree that all of this is really silly, but it shows how a BOD can run amuck and waste their efforts when there are so many other issues that need to be addressed. The documents for the HOA I live in don’t have such detailed remedies.

Also, the type of actions that each of the recent posts refers to are for those owners that have been notified numerous times. Going in to fix something would have been the HOA’s last resort. This situation is different. The BOD started getting involved before the owners were even notified. This was a large number of owners that were being affected.

How about "you can't make a silk purse out of a sow's ear" or "you can lead a horse to water but you can't make it drink" or ... We all have to work with what is there and that is the real frustration. Wouldn't it be worse if you actually paid board members and then they still did these same things?

As we all have seen in many other topics, you can just work a bit at a time and hopefully things will get better.