HOA Board member being sued by condo renter.

Hello everyone, this is my first time here and I am in need of some helpful advice. Please do not read this post unless you want to hear an HOA’s worst nightmare.

In short I campaigned and became the President of my HOA in order to solve long term issues that have plagued my community for several years. The other board members and I were able to affect a lot of change in the last 3 months and now things are safer, cleaner, and so quiet that you can hear the crickets.

Now on to the original point of this post, there is one tenant, we will call him Mr. A. Mr. A is quite simply the reason why HOA's exists. He is rude, obnoxious, and believes that the CCR is just a bunch of crap that he does not need to follow. He is currently in violation of at least 7 to 8 HOA/CCR laws and at least 4 local zoning laws.
My condo complex has 26 units and 13 visitor parking spaces. It is stated in the CCR several times that the visitor spaces were not designed for the residents and were only meant for visitors of those people who reside in my complex. Because of Mr.A's actions and utter defiance of the rules, many residents had made it a habit to park not only in the visitor’s parking lot, but in the fire lanes as well. Since the complex has only one egress/exit street, that kind of situation makes it incredibly unsafe, especially if a fire were to occur.

So I spent a month educating the entire neighborhood about the true purpose of the visitor's parking lot and that a Towing truck company was hired and that signs have been placed to tow any of those folks who feel like they should continue to ignore the rules. Basically I kept dropping notices on everyone's windshields and I posted up several notices by the mailbox and common areas almost every other day. This brings me to my point. Mr. A did not like my attempts at cleaning up the neighborhood and basically said he will not conform to the rules in a threatening manner. We had 5 heated discussions and I told him that the rules will not be bent for him or anyone else. The reason the Mr. A can't park his cars in his own garage is simply because he is using it for storage for his business. Upon hearing this, I informed him that he cannot run a business from his home, especially in his garage. It is against HOA CCR regulations and local zoning laws. Furthermore the CCR regulations and the local zoning laws state that the garage has to have enough room to park 2 cars within it. I told him that unlike the board members who preceded me that I do not make idle threats. So after about 5 weeks of giving out courteous notices, I had one of his 2 cars towed from the visitor's parking lot. In retrospect, I should have towed both of them.

So of course he complains and he kept coming over to my house after I got home from work and would argue with me. After the 5th time, I told him that I knew about his feeble attempts at having me impeached, that he really should clean out his garage so that he can park his car where he is supposed to. He complained and said well I can't park there. Well I told him that he can park out on the street for all I care. I told him that I am no longer playing this game with him. I said that if he had any further concerns he could contact the management company. The last thing I said to him is that if he came over to bother me or any member of my family ever again, I would have a restraining order put on him.

A few weeks later I was served a subpoena by some homeless looking guy. The subpoena states my name personally and the management company. I laughed because it stated that there is no sign to indicate that he would be towed. He also listed his business at his condo address. There is a nice big towing sign which he can clearly see from his driveway that is right in front of the visitor's parking lot. I have provided him with at least a dozen written notices, 6 verbal notices, 2 letters, and apparently the previous board members did 3 times more work than I did.
The previous president and I had a talk yesterday and she provided me with several threatening e-mails that dealt with this same problem with Mr. A in the past. He threatened to sue if anyone were to tow either of his cars from the visitor's parking lot. This was dated over 3 years ago. No action was taken at that point because they were afraid of retaliation from Mr. A. So this problem became mine. I also found out that his HOA fees have never been paid in the last 4 years that he has resided in the complex.

I am going to small claims court this coming Monday. I have attached a copy of the sign in question. Now the sign at the bottom was added recently just in case of any other ridiculous attempts to use this lawsuit as precedence. The management company and the tow truck company assured me that the sign in the middle is just fine for the purpose that I intended for it.

Sorry for my rambling, but there is a lot more mundane details that I have left out. So what I am really asking is this, how do I ensure a favorable outcome as the defendant in this case? He claims that his car was not parked there for more than 72 hours and in fact it was left there for almost 2 weeks. I told him that the 72 hour rule only applies to visitors, not residents. Here is exactly what he placed on the subpoena. "Defendants illegally towed plaintiff's and have forced plaintiff under threat of further towing to park on a street in a high crime area where plaintiff's car have been vandalized and broken into". I have about 8 resident's who provided some detailed witness statements to back me up but the rest do not want to get involved because they are all afraid of Mr. A.

Mr. A wants $1500 for a tow that costs $211. He claims that his car was broken into and that I ordered him to park on a public street. He is allowed twice the cost for the tow. So it amazes me how $211 times 2 equals $1500. I am sure that amount will be laughed at. However, I have no real faith in our justice system.

[IMG]http://i43.tinypic.com/1bvyq.jpg[/IMG]

Yup.

That's one of the reasons HOAs exist and that's one of the risks we take as board members when we try to maintain the integrity of the documents.

TO be sure, I think you should have begun action against him when he revealed to you he was operating a business out of his home in violation of the CC&Rs.

I just hope you sent notice on that prior to his lawsuit.

At any rate, have you gotten any guidance from an attorney on how to handle this in court?

Best of luck to you!

John - ask the court to dismiss you from this case.

This jerk needs to sue the HOA - not you personally. The HOA lawyer should be called and all paperwork turned over to him/her.

Don't dignify this claim by trying to go to court alone.

Two great catches here:

The lawsuit should be against the HOA and not you personally, and "renter."

I missed that.

If this guy is a renter, then what action have you taken against the member/homeowner to ensure that he keeps his property in line with the covenants?

Thanks everyone for your support, I have asked on other websites and got little to no response. The subpoena is a little off because it lists me as the primary defendant and then it lists the homeowners association and the management company as though they were one entity. However, the subpoena states the vice president’s name (although misspelled) and/or Homeowner’s situation to appear as a witness. So of course I will be representing the Homeowner’s association by myself as a witness against myself? He wants a copy of the list of every car that has ever been towed at my complex. This is easy, only his car was towed

I am really finding it difficult to hold myself back because Mr. A is a frail creepy looking 49 year old man with a nasty demeanor and I am a crippled, crazy, but highly functional war veteran. I could easily break him in two but I figured that he would be on his best behavior until this case is over. So as long as he has quit harassing the rest of the community, I am happy. However he has a long history of bullying HOA members, management companies, and his neighbors that have families with small children. I have no kids or a wife to worry about. My brother can take care of himself as well. I think that my no shit taking attitude is the reason why his shenanigans have almost been reduced to zero. I do make rounds around the complex quite often since my Chihuahua has a lot of energy and needs to be walked often. I pass by his place going out and coming back in and I always smile and wave hello neighbor. Lately he has been scurrying away. I was hoping that he would drop this silly lawsuit but now I am very curious. I would like to know exactly what his reasoning is. Because I know he is off his rocker, and so does everyone else in my complex. They are all afraid of his retribution.

FrancescaM

I would love to but I just spent $2000 trying to save my dog that I rescued 5 weeks ago who is dying from Canine distemper. This happened 2 months ago. Restraining orders cost $150. If he ever encroaches on my property, he will be dealt with.

MicheleD

I don’t have to prove that he is running a business at his home because the subpoena and his website both state his home address as his condo in my complex. I had the city housing inspector come by but he is a lazy ass and said that no one was home.

EverettC

I was not even aware that our insurance policy was covered against this sort of thing. I doubt we have a lawyer because our reserve fund is only at $8,000. A $1,500 lawsuit would be detrimental to our account. The management company and the tow truck company have both told me that he has no foot to stand on and that I shouldn’t need a lawyer. I have tons of copies of the notices and lots of pictures. I even have angry e-mails directed towards the previous management company that threatened with a lawsuit should his car be towed dating back to 2006.

I like your questions, should I calmly asked them before making any statement about dismissal? It is laughable that he could sue me for damage that occurred to his cars on a public street. That is what insurance is for but a years worth of full coverage is more than what his 2 vehicles are worth.

I will make an argument that this lawsuit against me personally is a bunch of baloney since I was and am acting as a member of the board.

SusanW1

I will talk to the management company but I doubt we have a lawyer since we only have 26 units; only 20 units pay their dues.

JonD1
The management company will show up if they don’t have to charge us. I think they should come since they were listed on the subpoena. However, Mr. A never sent them one. The towing company is joining me. Personally, if the lawsuit should be directed at anyone, it should be them I told them that the sign I wanted specifically was for the visitor’s parking. I really did not care about the fire lane because the city would have taken care of that matter.

As far as professional goes, he does like to argue and he might have a small technicality on his side because he is going to claim that towing sign is confusing.

Here is the regular fire lane sign.

http://tinypic.com/r/2w6cp60/5

Here is the visitor’s parking/fire lane and unauthorized vehicles will be towed sign.

http://tinypic.com/r/fwpr3m/5

I added the sign on the bottom to prevent any other people from possibly using this case as precedence.

http://tinypic.com/r/2148ilg/5

However he has received over 40 notices and he has argued with both management companies and both generations of board members over this matter for 4 years. The statement in the e-mail that he sent threatens anyone with a lawsuit if his car is towed. He can try to get even, but the police will be notified. He did pull a stunt 3 weeks ago. He called the towing company, without authorization and gave a fake name. I had just arrived home from the movies that night at around 10:00 p.m. and for the first time in months, the parking lot was full and there were cars parked everywhere. There were 4 parties going on because it was a Saturday night. I went upstairs to use the restroom and then I heard the sound of a diesel truck, specifically a diesel towing truck. So I went downstairs and had a chat with the driver. Low and behold, it was the owner. I asked him who called, and he said his name was Mike. At this point, over 20 people came outside and a crowd was starting to brew. Mr. A just happened to be skulking around with his high dollar camera. I told the driver that no one from the board called him out and that the person who is suing me is coming up the driver’s side of his truck. We agreed that attempting to tow a car with 20 people standing there would not end well so he left. Then Mr. A. tried to make it look like I called the tow truck. I said “don’t worry Mike, I will handle this. Oh, don’t worry; I will see you in court in a few weeks.” Then he goes on and on about me thinking that I run the place and I can do whatever I want. I tell him to leave, and he goes scurrying off. I spent over an hour calming everyone down.

MicheleD
The management company spent several weeks trying to figure out who currently owns the house. We have sent notices to the old owner who sold the place 2 years ago. We have just located the bank that purchased the property and we will be sending them hearing notices shortly. I will tell them that if they do not handle their tenant, fines will be assessed and they will double every month until the situation is resolved. Right now, I have at least 8 violations and at $25 per fine, it will add up each and every month. The clown does not own the property and he is the craziest renter I have ever known. What kind of deusche is dumb enough to antagonize the HOA president? I realize that the previous president is a mother of 3, but come on. He should realize that this will not end well for him. Yes I did call the tow truck company and yes I had approval from the other board members as well as the management company. I don’t care if I lose but I do not want either myself or the HOA have to pay for this crap. I am about half tempted to implement a policy that will not allow anyone to rent their property out without first notifying the board and waiting for their approval. This is crap since the owners don’t pay their HOA fees and then don’t bother controlling their tenants. I have heard all kinds of horror stories about the weird stuff this guy is hoarding in his garage. I wish the police would come over and bust it open.

John:

From your response I get the impression you are in fact the type of person who pays attention to details. You covered each area of question with a rational, logical response. That should serve you well in court.

Don't know how things are done in California but here in NY each party is permitted to question the other. Very informal.

Mr. A How many notices were you sent regarding the area in which your car was parked? And are these copies of those notices? And after you recieved these notices what in fact did you do to correct the situation?

Sort of gives a clear picture of what type of person you are dealing with.

I wish you luck. Be prepared, if you think you might need it in court take it along.

Stay cool clam and collected and work to make Mr. A look like the problem.

You should answer this suit in court but I would suggest to you that the property owner not this tenant should be contacted and informed of the violations in the future. The tenant has no standing with the property's Board or management.

One word of advice: Threats come in all sizes and shapes. They can come head on or in round about ways. Even small fragile people can cause you problems so win or lose keep your eyes open in the back of your head.

A word to the wise.............

JOHN,

The renter is NOT violating the CCRs ... the OWNER is in violation.

The only agreement the renter is violating (or not violating) is his lease with the property OWNER.

The HOA has NO POWER (other than polite requests) over a renter ... only over the OWNER who is absolutely responsible for the actions of his renter.

Welcome to the real world .............................

John,

If you end up in small claims court I'd suggest you present whatever paperwork you have and be brief in your comments. Then sit back and let Mr. A. reveal his true self by running his mouth, which I suspect he will.

John,

Why hasn't the BOD been dealing with the bank all along? In AZ you can't just start fining if you haven't sent any violation notices. The member has the right to appeal b/4 a fine is levied. Have you checked your gov. docs and the Davis-Stirling Act?

Mary A1,
No fines will be assessed until a hearing notice is given and a hearing is held about 2 weeks from now. After that point fines will be given because no one ever comes to a hearing. If the bank decides to show up, then we will negotiate. However, they never supplied us with a lease or a notice that ownership had changed hands. The previous owner was not only scared but took the coward's way out. He never notified anyone that the property was sold.

MicheleD
I will not be using the business as a defense. I will show that running a business is no excuse for blatantly disregarding the rules and bullying the Association and the rest of the neighborhood.

I am not trying to relieve my frustrations here. In fact, I welcome any angle that you guys can throw at me that might show that he has a valid case. I would also like to know how to conduct myself seeing as I have never been sued before. Should I start off with the "Bear with me your honor, this is my first time being sued." How should I state the facts? Should I ask the judge if I can ask the Plaintiff a few questions like:

"Were you aware that parking your car in the visitor's parking lot and the fire lane is prohibited?"
"Were you aware that you must have your garage clean enough and available to park 2 cars?"
"Were you aware that running a business, especially one that interferes with the rest of the neighborhood is not allowed in a Condo Complex with an HOA?"
"Did you ever read any of the cease and desist notices that were mailed to you on multiple occasions?"
"Is there a reason why you believe none of the HOA regulations or the City's regulations apply to you?"
"Do you realize how uncomfortable you make all of your neighbors feel with your actions?"

I just want to show the judge that HOA's exist to prevent people like Mr.A from moving into and living in their neighborhood.

John:

Your D&O Insurance should represent you in this court action since the lawsuit was brought against you as President. I do hope you have such a policy? Please call your insurance agent and be represented by counsel in this case.

John,

"I just want to show the judge that HOA's exist to prevent people like Mr.A from moving into and living in their neighborhood."

I think you are going too far afield with your suggested questions and with the quoted statement. Keep your questions and comments before the court focused on the towing. Was there a rule? Was he aware of it? (Whether he actually read the letters is not important, only that he received them. Whether he actually read the sign is unimportant, only that the sign is there, although you may have to dance around whether the text is unclear - the letters should help to clarify any ambiguities in the text of the sign). Was he violating the rule when his car was towed?

The HOA is not part of the lawsuit; indeed, that is part of your defense (in legal terms, you are an agent for disclosed principal, acting for the principal - teh HOA - and therefore you should not have any personal liability). Whether he makes others uncomfortable is not part of the lawsuit. Whether he is violating City regs is not part of the lawsuit (you and the HOA are not responsible for directly enforcing City regs). Whether he was running a business is not part of the lawsuit. Even whether his garage was full of business materials or just plain junk is not part of the lawsuit (although he may raise it as justification for parking outside the garage) - suppose he had 3 cars - two in the garage and the 3rd one, parked outside in the fire lane or the visitors space, was the one that was towed. Towing would still be justified under the facts you have presented.

Good luck!

John, as much as it probably doesn't make any difference, do you realize everything that you have put in this forum is public? Depending on how someone may read this, it could be used against you.

DJ1
The second sign was put up to prevent any future incidents like this from occuring. If he were to try this stunt again he or anyone else would lose, even if this case is lost. Keeping costs to a minimum? Have you seen the price of Lawyers out here? I also stated before, a lawyer can’t be present during small claims cases.

RobertR1
Thanks for that insight. I will check into that.

MicheleD
It can appear to be vindictive, but he is still breaking the city zoning laws as well as the HOA CCR laws. If he argues, then it will be easy to make all of his bad behavior relevant. I will not be using the business as a defense but just another toothpick on the his pile of long term disregard for the law.

EverettC
Thanks, I will try to stay the course. He knows the CCR regs inside out because he argued with me during one of the many times that he came over to argue about parking, and had the nerve to point out that my doormat, Malibu lights, and one of my curtains is out of regs. I was a little peeved to find my Malibu lights broken a few nights later. I am sure I know who it was but that is a subject for another day.

RobertR1
I hope I will have my case presented in one minute. He was warned to move his illegally vehicle at least 2 dozen times by various forms of communication over the period of 4 years. He threatened to sue twice if his car was towed over 3 years ago (which I only found out recently). The towing truck company had a contract with the HOA. The towing truck company was called by an authorized member of the board to remove a vehicle that was breaking the rules. His lawsuit $ is 7 times the cost of the actual tow. He is attempting to collect for damages done to his car on a public street. The regulation he is using in his lawsuit is on the sign that the tow truck company had installed in the visitor’s parking lot.

RoberG12
Is it against the law to state the obvious while keeping the real names omitted?

Thanks for your help everyone. I have just realized that I have one extra ace up my sleeve, but I will keep that to myself just in case Mr. A is amongst the readers of this post.

JohnK,

In California, an attorney cannot represent either the plaintiff or the defandant in a small claim court case.

Technically, an attorney can be present in the courtroom, but I think JohnJ meant a lawyer cannot represent him in a small claims court case., i.e, a laywer cannot ask questions of the witnesses or make argumnents to the court.

Well according to the website they cannot be present.
http://www.lasuperiorcourt.org/smallclaims/ui/

Here is what it says on the Small Claims court opening page:

Small Claims Court handles Civil cases asking for $7,500.00 or less. It is a special court where disputes are resolved quickly and inexpensively. Rules are simplified and the hearing is informal. There are no lawyers, no rules of evidence, and no juries. You don’t need to be a United States citizen to file or defend a case in Small Claims Court.
Some examples of problems that can be handled in Small Claims Court are: Your landlord will not return your security deposit
Your car was damaged and the person responsible will not pay for repairs
Your new TV does not work and the store will not repair it
Your tenant damaged your property and the security deposit will not cover the full costs of repair
Your friend will not pay back the money you loaned them

The judge said that he will notify us of his decision in the mail. I am quite certain that the verdict will be in my favor.

Everette:

That may well be I do not know CA law; however if John is serving on the board then he cannot be sued personally; the CCR's need to indemify him during his term. Nonetheless Good Luck John!

I would like to thank everyone for your help and insight on this matter. I received a verdict that states that no payment has to be made to the plaintiff. Although the law was on my side, there were many reasons why I won. First I had 3 copies of everything I had. Second, I only had relevant pictures. Third, all of my evidence was clearly highlighted and was readily available for the bailiff to pick up. Fourth, I addressed the court directly and I was extremely polite. Fifth, and the most important, I opted for mediation in the beginning. The other party became extremely emotional and unprofessional during mediation. He went off tangent and kept interrupting me during my turn after I let him talk for 10 minutes straight. The mediation took so long that the other 3 parties were already done with their cases. I was there for over two and a half hours for a ten minute case.

A few more factors that helped me out:
1. The service paperwork was not turned in on time or properly
2. The subpoena that I was given was for a witness and not a defendant.
3. The subpoena was filled out improperly and had his "Charity/Business" included as a plaintiff.
4. The judge realized right away that his "Charity/Business" was being run illegally.
5. The Judge decided to defer to the HOA CCR's as far as the Parking rules were concerned.
6. The plaintiff only had one copy of his evidence, which was almost completely circumstantial.
7. The Plaintiff did not come dressed to court appropriately nor did he conduct himself in a professional manner.
8. The plaintiff had no witness statements.
9. I had 9 witness declarations/sworn statements.

The funny part is that the plaintiff said that he was a very litigious person. Lucky for me that he did not bother to read the Small claims court website, nor did he ever call the help number to ask questions. If he had, he might have had a better chance at winning this case or he might have reconsidered how fruitless this case was.

I think his "experience" with "litigation" is that he threatens, he does the Small Claims thing to make the "bluff" real, and then hopes the other party either backs down or gives in.

Good job and trust me, it will be very important at a later date and in other potential conflicts THIS particular item:

5. The Judge decided to defer to the HOA CCR's as far as the Parking rules were concerned.

It will be like gold.

In so many words he's saying your docs, for the parking rules, are enforceable and supported by the court.

Wow, I finally got a hold of the bank that owns the house that Mr. A lives in. He has not paid the rent in over a year. The bank's legal department said that they tried everything to evict him. I don't understand how this renter can get away with squatting and suing people frivolously. This is absolutely ridiculous.

John:

Glad to hear this positive outcome.

Nice to know in at least some places the legal system does in fact work. I have my doubts sometimes.

Yes making threats seems to give some folks a feeling of power and authority. And as one person once told me "people threaten you with those things they themselves most fear." Many people throw out the threat of taking this to court, contacting their attorney, or filing a lawsuit and in response we are all supposed to soil ourselves and give in. Yeah right.....

Last night we were served noticed of a small claims suit brought by one of our resident wingnuts. Guess the local politician fell on his face in their attempts to use him. So off to court we go hoping the judge understands who in fact is the problem. In this case not hard to make clear.

So John good luck and enjoy your success. I would repeat my suggestion from before most people like your friend there tend to be sore losers. I would expect some sort of action on his part to get "even". The abnormal human mind at work.

Robert:

As I get older and hopefully wiser I understand that some folks are just bat sh__
crazy. And with time, I have been able to develope the ability to pick these folks out. We have several on our property as I would guess most people do.

You can't work with everyone, some folks don't understand the concept. No matter if you stand on your head and spit quarters they will never be happy. (They have never been happy in their lives.) As in John's case some live a life of causing problems and making issues that they themselves have caused.

I don't have the time, effort or desire to make nice with these folks. There simply is no such thing. So while in some cases you might be able to get through to some folks in others there never was and never will be a chance for that.

I am not a turn the other cheek kind of guy, I can play the game either way their choice. But in life you get back what you give. In some cases in spades.

Some idiots believe the world orbits around them, they don't deserve my time nor will I spend my life attempting to make them happy or satisfied.

That simply is NOT my job.