Are the HOA BOD working to deprive me of my property rights?

I am an absentee unit owner in my building and I rent out my unit on a lease reviewed and approved the HOA Property Manager. The HOA BOD emailed me yesterday attempting to coerce me with threats of fines and legal actions already under review by counsel into evicting my tenant immediately. I asked repeatedly for evidence but none was presented, and per the lease terms I have no basis to evict nor am I so inclined without cause.

The HOA BOD accuses my tenant of tripping the fire alarm three times in the past six weeks.

The HOA BOD subsequently emailed all the home owners that they "have identified the person activating the alarm, and we are proceeding with disciplinary action against that person with the advice of our attorney".

I characterize their initial contact to me on this issue as bullying and have only communicated with them through email as a result. While I appreciate that the accusation, if substantiated, may provide cause to evict under the lease, as an unsubstantiated accusation now spread to all the owners it reeks simply of harassment. I'm afraid that the HOA BOD may have already created an environment unfriendly and potentially hostile to my renter and thereby eventually harmful to me by resulting in depriving me of my property rights.

Do the HOA BOD unsubstantiated threats and attempts to force me to evict or the efforts to poison the communal environment and thereby deprive me of my rights provide me sufficient legal cause to sue for damages?

I'm happy to provide specific details and quotes from correspondence as requested.

I really suspect the HOA BOD is way out of line in this and would prefer to have resolved it earlier, but I think they crossed the line.

Emile

Where are you located?

I hope they have more important things to do, and I certainly would hope for a friendlier relationship. But when their _first_ contact is a heavy handed threat, I'm not convinced they see it the same way. This is how their inital contact starts:

This email is being sent to you as an advance notice of a letter you will subsequently receive from the members...


Dear Kim and Emile:

This email is being sent to you as an advance notice of a letter you will subsequently receive from the members of the XXXXX board of directors regarding the conduct of your tenant, XXXXX.

We currently have a letter to you undergoing legal review...


And continues with detailed information and allegations, but no evidence.

Now, my recollection of legal actions is such that once the lawyers get involved, you're instructed to continue communications solely through representation, and this communication would seem to go against that. Is this a usual and customry approach to resolving issues with members of the association?

As to making peace, it seems to me that the solution they're looking for is for me to evict my tenant without providing adequate evidence and thus in violation of the law. Can they do that?

While evicting someone is not likely, the fines are. The fire marshal is probably issuing a fine to the condo association, could be up to $500 per alarm, which they are passing along to you. So.... $1500? Its up to you how you handle this $$$ with your tenant.

You need to have a chat with your tenant and ask them what is happening that is causing the alarm to go off and how they are handling it. Typically the dwelling has a separate alarm than the condo building. But if the tenant opens the door to the condo building to air it out, that alarm goes off too and the firedept is sent. The answer is to not open the door to the hallways. Your tenant might not know this.

> Emily,Care to comment?

Yes (Please, my name is Emile)

> Your: "This is how their inital contact starts:"
> How did you find out what this offense was, setting off fire alarms?

From this initial email contact.

> At the time you received this e-mail, you had no other contact with > the Board or the Manager, prior to this.

That's correct.

> How did you know the Board was spreading false information
> about your tenant.

Within hours of contacting me, they sent the following to all members:

Dear Neighbors,

As we are sure you are aware, the third false fire alarm in a thirty day period was activated early this morning. This email is to advise you that we have identified the person activating the alarm, and we are proceeding with disciplinary action against that person with the advice of our attorney and property management company.

> Did the management or the Board contact your renter?

Not that I'm aware of. I did call the tenant and informed him of the complaint.

> Were their actions affensive to your tenants.

Again, not that I'm aware of. I afraid however that their strong arms tactics don't stop with members of the association.

> You of course have proof of all this;

Only so far in email communications.

> the board spreading lies
> about you and your tenant. If a case is in litigation the
> lawyer might tell the Management to refer any questions to him.
> As far as I can see the Board is offering you the opportunity
> to review these issues.

And yet after repeated requests by me in email for the evidence, and even requests for what chapter and verse I could use to affect an eviction, they offered not a single basis for me to proceed with.

> I suspect there is a series of steps the Board went through to
> get to this point. I would bet on it.

If so, then there ought to be records of it I can get to. If they had evidence to support their claims, they could well have proceeded with action directly against the tenant and provided that evidence to me so I could proceed with an eviction -- nothing provided to me however, again, despite my repeated requests. Here is my first paragraph in
response to their initial communication:

By all means, proceed with actions against XXXXX as you see fit. I will have to review the lease terms, but I suspect my only option is to notify XXXXX that he should vacate on 30 days notice (eg, end of May). Please advise if that's an acceptable solution from your perspectives.

> We get thousands of posts on this site, very few provide
> full information and none provide any contention from the
> adversary, in your case the Board. That's all understandable.
> You or anyone else is not going to get on here without wanting
> to tell their story. We answer some posts with
> instinct...........right or wrong....that is probably true.
> My instinct here is you should contact the Board, make peace and
> if the Board is set on evicting your tentant for repeat actions
> that you, as the owner, are responsible for, try and cut a deal.

> By the way, have you read all your documents, when you agreed in
> writing that you would abide by?

Yes, of course. And I submitted the lease for approval (which was granted), and the tenant signed off on obeying the CC&Rs.

> Every owner in your association has probably agreed to the
> conditions and restrictions as written in your governing
> documents and any pertinent closing papers. How long have
> you been an owner at your association?

I was either the first of second owner to buy into the property.

Regards, and I do appreciate the feedback Robert, Thank-you.

Emile

> Also...Your condo building may have their own false
> alarm fines as well as the fire dept.

Yes, but without evidence of who exactly set off the false alarms, is it right that they fine anyone?

Emile

Emile,
Sorry for the name screw-up.............my fault.

Regards your lease. The association document probably requires a lease between you and your tenant be provided. Essentially that lease is a contract between you and your tenant. The contract you have with the Board is to abide by the governing documents and you agreed to do this when you bought property there. Have you attended any Board meeting or had any involvement in the operation of your association, likely that is your responsibility also. As noted before, YOU are responsible for the actions of your tenant, just as every owner is responsible for their guests that may be visiting their individual units. There is not anything secretive about it, it all likelihood it is in your documents.
Think of this: In a condominium, and this is basic to all condos, what you own and all the rest of your fellow owners own; is a piece of the pie. You have the right to occupy a defined space and when you sell, you will sell that right and your piece of the pie........in your case, not necessarily 1/28th of the whole. All the grounds and all the physical property belongs to the association. None of this is new or unusual. When you purchased you became a member of this association. Let me give a short example. Suppose your complex had to be torn down entirely.....no questions asked. The insurance company comes in and offers a settlement to the association. The property has value so a price is put on that. Add the two together and you will probably get your apportioned share if you and your fellow owners have an apportioned percentage as assigned for your unit when it was built by the developer. If not you would receive 1/28th of the proceeds, less expenses, etc.

With regard to violations against the property, it is mandated that the Board has authority to govern the property under a loose set of guidelines, but some are very specific.The Board has to answer to the documents legally, how they decide to do this day to day will vary as I am sure you know about people. You take the Board to court you are suing yourself....hope you can see that. So in spite of past waters, you probably would benefit with a good Board relationship. If your neighbor also rented and his tenant was setting off fire alarms and disturbing your tenant and your tenant says to you, I am breaking my lease because I can't get any peace and quiet........who would you go to? Right to the Board and the Board has to go to the owner of unit being rented and seek resolution with the owner of that unit. How you or any owner renting resolve your eviction disputes is not the Boards concern. As I said at the start, the Board sounds serious, and if this is not stopped the complex will suffer and not just financially. You have too much to lose and not enough to gain. Settle with the Board.

You must take the below pretty serious. Don't you think the Board is doing the same, I say this with out picking a side. As always IMHO

The HOA BOD emailed me yesterday attempting to coerce me with threats of fines and legal actions already under review by counsel into evicting my tenant immediately. I asked repeatedly for evidence but none was presented, and per the lease terms I have no basis to evict nor am I so inclined without cause.

I have to agree with Glen's entire post.

Your claim that the initial contact was "strong arming" just doesn't gel with me, either.

It may have been a surprise.

And it was definitely something that was not too pleasant to hear, but I fail to see any strong-arm tactics.

In fact, that they emailed you at all to let you know of a potentially serious situation with your tenant, and that it will involve attorneys and other legal action, seems to be reasonable to me.

As Glen stated, it's human nature to get defensive when confronted with something negative in nature. There is just simply no way to make a situation like this look and smell like spring flowers.

Also, are you saying that you have never received any communications from this HOA before the email?

How did they get your email address?

And THIS is "proof" of their spreading rumors and lies about you and your tenant??

**********

Within hours of contacting me, they sent the following to all members:

Dear Neighbors,

As we are sure you are aware, the third false fire alarm in a thirty day period was activated early this morning. This email is to advise you that we have identified the person activating the alarm, and we are proceeding with disciplinary action against that person with the advice of our attorney and property management company.

**********

As Glen and others, and yourself, has pointed out, you are an absentee owner. The BOD is on-site, as are other members of the association who are being victimized by the false fire alarms.

If the BoD may not be providing the proof to you because it is to may be forthcoming in the letters you will soon be receiving from the attorneys.

It sounds to me like you are attempting to force them to pre-empt whatever material is under review by their attorney when you are sending repeated requests for "evidence."

They have already alerted you to a potentially serious situation.

They have already informed the members (who have had to live through the false fire alarms and ARE on-site and know what's going on) that they are handling the situation.

They have already let you know that you will be getting more information from either them, formally, or an attorney.

Have you received that letter yet?

You indicate that all communication right now is through email.

Our board would NOT pre-empt through email any communication to a member that would require a review from an attorney first.

By the way, it's not clear from your communications whether the letter you will be receiving will actually be FROM the attorney, or just a formal letter laying out the scope and ramifications that is being REVIEWED by an attorney for the typical i-dotting and t-crossing.

IMO, the letter sent to the members (which should have included Emile) informing them that the BOD is working on finding whoever is resp for setting off the alarms was proper procedure. What was not proper procedure was to contact Emile to let him know it was his tenant without providing the proof of this allegation. Accusations of violations committed should never be made unless the BOD has proof that the violation was made by the person being accused. State landlord tenant laws may prohibit a tenant from being evicted w/o proof that they violated their lease or did something illegal. At any rate, Emile should have the right to an appeal before the Board can levy any fines. During this appeal the board should have the proof available to substantiate their position.

By the way, in response to the actual question posed in this thread, "Are the HOA BOD working to deprive me of my property rights?", my response based on what I've seen so far is, "No."

Hello All,

There's been quite a bit of activity on this issue -- both here and
with the HOA BOD. Let me bring you up to date on this end first.

They emailed me this morning a copy of the letter that was put in the
mail yesterday.

The content is essentially the same as the first communication to me,
provides no further evidence, and details only three "personal
violations" they apparently intend to move forward with against me.

Here's my response. I'll provide copy of whatever you feel you'd like
to see, but I haven't quoted out of context.

--- start of response ---

I'll address your three issues in turn.

First - failing to provide both the board and the property management
company telephone numbers for yourselves and your tenant.

response - I have email communication from xxPropMgmtCoxx that includes
my home and cell telephone numbers as well as xxTENANTxx's cell number.
Check your records -- it's dated 11-20-2009 at 11:05am.

Second - failing to provide the board and the property management
company a fully executed copy of your lease agreement with your tenant
that, among other items, must include the tenant's acknowledgement of
receipt of our various governing documents as well as his agreement to
abide by the terms of them.

response - I've attached it hereto.

Third - failing to discuss this matter personally with your tenant
either by telephone or by a meeting after being notified by the board
of his conduct.

response - I did so on Friday. I immediately created a written record
of the communication and have attached screenshots that document the
date, time and filesize for future reference. The gist of what was said
as it pertains to your concerns reads " I informed him of the xxxx
Boards HOA complaint against him." continues with "...the HOA wanted
him out" and states "this event would certainly count as the first of
three complaints"

As to " Please advise us if you plan to attend this meeting." -- No, I
am unable to attend. I will contact legal representation as needed if
you plan to continue this action against me and see if he is available
that evening.

And finally, "We further request that you take action to terminate at
the earliest possible date your lease with xxTENANTxx as we want him
evicted from our building and then advise us as to when this will
occur."

At this time you have failed to provide me assistance so that I can
move forward. You must be aware that renters rights in San Francisco
are fanatically (my term) upheld, and I expect that acting solely upon
your allegations does not constitute a valid legal basis to proceed and
may expose me directly to consequences I'm unwilling to enter into. If
you have information that would allow me to proceed, please make it
available to me. Otherwise, between market conditions and the ongoing
construction in the building, I expect I'd suffer a financial loss to
evict him at this time.

Emile

-- end of response --

Well, it bothers me that the board announces to all the resident owners that they know who did it, and as the board members also live in the building I can imagine that it won't be long before that information is out. This creates an environment hostile to my tenant and possibly to me as a landlord who was unwilling to evict on the unsubstatiated allegations. Will my next tenant fare better in this environment? I have held the property as a personal second residence until financial conditions forced me to rent it out. I had intended to again use the property that way, but I now no longer feel comfortable with that. So it seems to me that I've already suffered a loss of enjoyment, and it appears they're intent on adding financial loss as well, and without due process. The seeds have been sown. If it takes root and matures then the damaging actions have already been committed. It's not fantasy on my part I don't think, just the logical consequence.

Hi Robert,

I'm here to get a rounded perspective and appeciate your (and everyone's) consideration and input.

Let me preface this by saying that I don't argue that my tenant did or did not do what he's been accused of, and that my repeated communications with the BOD has always asked for sufficient cause to proceed as they would like me to.

I agree I've been, let's say strict in interpretation which could be considered agressive, but is in fact defensive in origin. As my communications with the BOD was initiated with their talk of 'legal review' I of course shifted to CYA mode in defense. In the mean time I asked for cause to be provided, indicated I was willing to move against the tenant as requested, and am now at the point where there is nothing actionable for me to proceed with other than informing the tenant that a complaint exists against him.

What compromise is available? Should I evict based on rumor and accusations and be left standing alone against the rent board? Are the BOD acting for the benefit of all the owners with their actions? I offered early on to provide notice to the tenant as is my option, but the time line was shot down. It seems to me they're not being reasonable. They may be right that it's the tenant's fault. But they want me to take a bullet for the cause...

Emile

Emile:

So your concern lies with the hostile feelings towards your tenant?
And what concern do you have for the other 27 unit residents? Any?

Sounds to me like you wish to form some "legal" grounds going forward rather than acting. I have to laugh with your suggestion this might affect you being able to return to the property as a resident. Sort of making a mountain out of a mole hill if you ask me.

What is possible sometime in the future is in my mind not important right now.

I'm beginning to believe there is far more to this story than an e-mail you recieved on Friday. Implying this all came out of the blue for you.

And your fear of the term "legal review" suggests you lack any real knowledge of hiow a Board acts or your role as a unit owner.

You have missed the point and rather than fix the issue you try to spread doubt and concerns that have nothing to do with your tenants behavior.

Rather than questioning the actions of the Board perhaps you should first consider the actions of your tenant and yourself in this matter. IMO your
stance does not help to resolve this on any level.

So, let's have a straw poll.

Based on what's been presented so far, would you evict?

Vote +1 if you would evict, or -1 if not.

Obviously, I vote -1

Emile

Hi Tim,

That was the gist of my very first reply to the BOD:

> By all means, proceed with actions against
> xxTENANTxx as you see fit. I will have to
> review the lease terms, but I suspect my
> only option is to notify xxTENANTxx that
> he should vacate on 30 days notice (eg,
> end of May). Please advise if that's
> an acceptable solution from your perspectives.

Emile

Forgive me for wanting to see if there was a consensus to evict. I don't see it, but I've never been at this point.

Jon,

As Pres of your BOD, is this how you operate? Does your board send violation notices -- or just make accusations, w/o having proof that the person receiving the notice has committed the violation? That is the crux of this problem and that is why Emile is reluctant to just evict this tenant. I don't blame him for wanting proof of the violation before taking any action. IMO, this BOD is not acting properly -- they are at fault, not Emile!!

And yet when she shared the ACTUAL content of he email, it wasn't even CLOSE to her initial characterization.

Sorry. Again we seem to be looking through differing lenses.

We don't know this as fact.



We don't know this as fact. In fact, we have no IDEA what the timeline actually is.

No, you already admitted that you have interpreted certain things based on being defensive.

For example, you claim that you're all bent out of shape about the BoD spreading LIES AND RUMORS about YOU and your tenant, when, it turns out, according to you, they have NOT stated in the communication that went out WHO it was, only that they have IDENTIFIED the person.

I think it's very legitimate and appropriate for the BoD to send a communication like that out, especially since this is something that is causing alarm with the on-site residents.

So we already see that you have some spin going on.

And you have still yet to let us know the timeline of all these communications.

Was your first email from them a month ago? A day ago? 48 hours ago? A week ago?

The impression is that this has been going on for weeks and weeks, if not longer.

Even then, getting attorney review of potentially sensitive communications can take more than a week, but that's beside the point.

We still don't know the timeframe.

If you toss away all the garbage in this thread and get down to the only question that matters.....

Can the association evict my renter? The answer is NO. Only the landlord can legally evict.

But... the association can hit the landlord with many fines, tie your time in a legal mess, etc. it will be in your best interest to evict the tenant if the person is causing problems in the association.

Thank you.

I rest my case.

Just curious, you DO realize that boards are not 9-5, 24/7 entities, right?

Steve,
I am not so sure that only an owner can evict a tenant. If the tenant is breaking the covenants of the association and the documents give lattitude to persue the volation and the owner refuses to evict thereby violating his covenants with the association the Board can go to court for resolution. Do I know this as fact?........nope, but it would appear that there is conditions that would be cause to evict the tenant. Distruction of common property for one, in a condominium and the offense is repeated and the owner takes no action.And certainly if the owner cannot be found to enforce the lease and dues are not being paid, etc, etc.