suspension, privacy, enablers

Started by LynetteB • 9 replies • 1494 views

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LynetteB (Texas)
Posts: 141

Posted:

Due to unpaid dues, we have suspended several members rights to use common areas.
Our community is a waterski community so it requires more than one person. One to ski, one to drive.
My dilemmas are (1) privacy issues and (2) members unknowingly, enabling someone who is in violation. (sometimes they know).
The members have been sent certified notice of suspension, as per our policies and State law. One member continues to use the common area either with other members or with non members that he brings. Our next step for the member is to implement our violation procedure and start fining him when he uses the common area. One problem with this as our only next step is that he already is behind in dues and adding fines is not going to get him to pay any faster. Stopping his use of the common area probably will, but to effectively accomplish this, we would have to offer an "incentive", (no fines), to the members who enable him. Thus the privacy issues.

Any one have any advice to keep this guy from using the common area?

Lynette

MicheleD (Kentucky)
Posts: 4,491

Posted:

Wow.

This is a new one.

Can't wait to see what some of the replies are to this.

JohnO6 (Georgia)
Posts: 424

Posted:

Presumably the HOA's goal is have this person pay his dues.
It is not, presumably, a goal per se to have him stop using common area amenities - rather this is merely a path to the former.
But is this the only path?
I suspect that, if the HOA has the power to attach liens to property, this might be a stronger incentive and eliminate the "thorny problem" of restricting common area use.
Similary, you should check your governing documents to make sure you have the right to fine (sounds like you do), and also for acceleration of dues when applicable.

Any of these might better achieve your primary goal.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Lynette,

First of all I would recommend forgetting about the enabling members. The members's whose rights to use the common areas have been suspended should be your only concern. If they continue to use the waterski facilities issue a fine for each offense. Depending upon what TX law says, these fines may be added to the delinquent assessments. Whether they are collectable or not doesn't matter (it's what I call "gravy income"), the point is that he is being fined for the violation. Take all the necessary steps to collect the fines and delinquencies. As this member's delinquency continues to grow and he is faced with a possible foreclosure, he'll get the message. But, if he doesn't, he'll be faced with a hugh delinquency and perhaps the possible loss of his home.

Unless your gov docs specifically state these "enablers" can be fined; my advice would be to let them alone. The members are not privy to who is in violation of the gov docs and who has had their waterski privileges taken away. It's not the members' duty to police the violators; that's a job for the BOD!

LynetteB (Texas)
Posts: 141

Posted:

John,
Our main goal is to get the amount owed. We have filed a lien on his lot, (no house on it), but that doesn't phase him.
I have heard of Acceleration of dues, but I am not really sure what it involves. I will check in to it.
Yes, we have the right to fine and will be doing so.

JohnO6 (Georgia)
Posts: 424

Posted:

Lynette - I don't envy you on this one .. .. a couple of additional comments:

Acceleration of dues is usually only meaningful where annual dues are paid monthly or quarterly. If the dues are paid annually it won't be much help and may well not exist in your covenants.

You certainly have the right to charge whatever late fees, interest, etc your covenants provide as HOA remedies against delinquent owners. Fines, however, are for violations of covenants, rules & regulations. In this case that's unauthorized use of common areas. But, does your HOA allow members in good standing to have accompanied guests? I suspect this is what you mean by the "enablers". If so, then you're left with fining him for those occasions when he's using the common areas as an unauthorized individual rather than as a "guest".

So, the path I really don't envy is:

1). Accumulation of unpaid financial obligations.
2). Reasonable, legal methods of debt collection.
3). Lawsuit.
4). Judgement, if suit is successful.
5). Enforcement of judgement if one is granted.

It's not a fun path to go down

MaryA1 (Arizona)
Posts: 7,043

Posted:

Lynette,

I've never heard of the term "acceleration of dues", but I think it would mean if your dues are paid monthly the member would be required to pay for several months in advance. I doubt this is legal unless specifically stated in the CCRs. Generally the board has the authority to determine when the assessments are to be paid, i.e., monthly, quarterly, yearly. However, the payment schedule is the same for all members.

JohnO6 (Georgia)
Posts: 424

Posted:

Mary - FYI

The term Acceleration of Dues, usually refers to a remedy the HOA has against a dues delinquent member. It refers to the ability of the HOA to immediately call due and payable all current years annual dues and is a power that,if granted the HOA, is ordinarily conferred in the govening documents.

It, as I mentioned in my previous reply to Lynette, most applicable where annual dues are payable monthly or quarterly.

LynetteB (Texas)
Posts: 141

Posted:

Thanks John and Mary for your replies!

This person has been behind for over 2 years now. We started charging 18% interest in January 2008. We got our Assessment and Violation policy in place in January 2009, and began the process of certified letters, opportunity for hearings, and filing liens. This will be our first case of fining a member. I guess we are lucky there. This person is making monthly payments to try and catch up, but it will take him nearly 3 years to do so. Our board won't foreclose yet as we decided if someone is making payments, we would allow it rather than spend over $800.00 to foreclose.

Yes, we do allow guests, and that is exactly my reason for using "enabler."

I have people, one board member and some past board members who have knowledge of the lack of payment, who continually ask me what I intend to do about this person using the common area. I tell them that I will appoint them to a committee to come up with that answer, but they decline.

Our dues are supposed to be due annually, but we allow quarterly payments without penalty for now. We are trying to get our members on the required annual schedule but haven't been forceful with it, partially due the relaxed way the developer began things, and partially because of the economy and the fear of scaring people in to not paying at all. Our docs allow for some specific remedies and then fall into the "or what so ever is allowed by law," statement. I read about Acceleration of dues in a HindmanSanchez article, but didn't find any reference to it in our docs or State laws. (not sure if I would find it in State laws anyway)

Again, Thanks for any replies. Maybe a cure all idea will come to you as you sleep and you can let me know!

PeterB1 (Florida)
Posts: 257

Posted:

Lynette,

Lots of similarities between your community and ours.

In April, we still had 5 homeowners who had not paid their dues. We had already placed liens on their property (in accordance with the Florida laws). We had the idea of withdrawing their use of common areas. This included the lakes, tennis courts, and storage yard as well as the service of our security guards.

We advised them that their access to our gated community would be restricted to them (using a clicker) or their personal escort of visitors & friends & workers. All this is perfectly legal as long as you don't deny them access to their property.

Within 10 days, we received full payment (dues & fines) for 3 of the 5 owners. This is the first time we tried this approach. The success (in terms of payment) was caused strictly by the inconvenience of having to go to the gate to allow visitors and trades people.

This may not work for other communities, be it certainly worked for us!

peter

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