Letter to Out of Step HOA President

Started by GeorgeA2 • 8 replies • 2448 views

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GeorgeA2 (Oregon)
Posts: 7

Posted:

We are having a problem with our HOA president applying our CC&R's. Our president does not seem to realize that by not applying the CC&R's consistently can lead to problems down the road. This second letter to our HOA president will give you some idea of what is going on. I would greatly appreciate your input. Thank you. George Andersen

9.14.10

To: HOA President

Thank you for taking the time to respond to my letter. I would like to point out that having pictures of a violation taken last yar is not the same as having written approval from the ACC. Homeowners are taking a chance when they undertake a project without ACC approval. This situation is not unlike an embezzler who, over time, takes money from a business, and whose crime is only discovered years later when someone becomes suspicious and begins to ask questions. In this case a homeowner became suspicious of the work completed in the front yard of 00000 NE South Avenue, and asked if the owner had obtained approval. The answer as we all know is no, Mr. Smith did not obtain approval from the ACC. As a result, Mr. Smith was cited for being in violation of (4) infractions of our CC&R’s each requiring corrective actions. Like the embezzler who has been discovered and charged, there are no statutes of limitations to protect him; nor are there statues of limitations to protect the homeowner that has violated our CC&R’s.

What should be of great concern to you is what gives homeowners grounds for not complying with our CC&R’s. This comes about when a violation is identified, documented, and communicated; and no action is taken. That is the situation we have now. In case law, it is termed a precedent. By your actions, you have stopped the process, resulting in no action being taken. The clock is now ticking, and a precedent will soon be set in place. The following are the CC&R’s that, by your actions, are being put at risk of not being enforceable in our community: Section 9.13 – Landscaping and Exterior Maintenance, which helps to preserve the values of our homes; Section 5.4 – Plan Review and Section 9.8 which allows for a qualified group of homeowners to assess an application for approval to assure that both the execution of an improvement project and end result of the improvements not only comply with the CC&R’s, but will be of high standards, and will maintain the aesthetic integrity and overall quality of our community; and Section 9.8 -Sight Distance Easement which protects small children from be run over by a vehicle backing out of a driveway by requiring bushes and shrubs within the sight zone to be no taller than 30 inches.

It’s important for you to realize that the violations noted at 00000 NE South Avenue are not uncommon in in our community, and have not gone unnoticed. Just in the last 6 months (2) similar front yard projects that had not received approval from the ACC were addressed. In each case, the homeowner was sent a violation letter outlining the infractions and the corrective actions needed to bring the property back into compliance with our CC&R’s. In both cases the owners responded positively by completing each of the corrective actions. In both cases the front yards were returned to the norm, and in compliance with our CC&R’s. Each homeowner did an outstanding job of correcting the situation, and now have beautiful front yards to show as a result of their efforts.

It’s estimated that 50 million Americans live in association-governed communities. About 6000 to 8000 new community associations are formed every year. It’s estimated that 80% of the homeowners who live within these communities do so because they know that CC&R’s help to protect the quality of life and the value of their homes.

Our community home owners are no different. We have not tolerated a refusal to apply the CC&R’s in the past, and we will not tolerate similar behavior now. I urge you to seriously reconsider your position.

Regards,
George Andersen
CC: Management Company

DanielH1 (California)
Posts: 482

Posted:

I have no context for this letter but ...

(1) It isn't clear what the President's position is. A homeowner was cited for 4 violations which it seems like you would support. Maybe the President revoked the citations or gave a variance or failed to follow up. I can't tell from the letter. So, I'm not really sure what the letter is trying to correct.

(2) The reference to embezzling seems out of place. In business letters, I admit that dislike similes because they usually confuse, rather than clarify the issue. I prefer something like: "You did or failed to do X, I ask you to do Y for reason Z."

(3) It isn't clear what you want the President to do. Again, I'd write: "Please do Y."

(4) You can probably skip the HOA paragraphs at the end, too.

I guess that you are trying to be gentle and formal which is very nice but obscures your point.

GlenL (Ohio)
Posts: 5,491

Posted:

Why is the president granting variances? It is not up to one individual it is up to the entire Board.

Studies show that 5 out of 4 people have problems with fractions

GeorgeA2 (Oregon)
Posts: 7

Posted:

Thank you all for your input. Let me provide some more background that might help to clarify the situation. The above draft letter is in response to a more formal letter sent to the HOA president who clearly did not grasp the situation.

Last month, violations were reported to our management company after learning that a homeowner had not applied for, nor received approval for making several changes to his front yard. The management company sent out a violation letter describing the violations along with the corrective actions to be taken to bring the property back into compliance with our CC&R’s. The homeowner argued that he had pictures of the property as it was being changed over the course of a year, and felt that the length of time that the changes (violations) had gone unnoticed gave him permission to make the changes. It all came to a head when more changes were recently made, and the suspicions of homeowners in the area were raised. A call was made to the management company to see if any of the changes were approved. The management company indicated that no approvals were given, nor applied for.

Our CC&R’s are very clear on situations such as this, in stating that the ACC (Architectural Control Committee) has the final word. For example, it is required that all improvements to the front yard must be preapproved by the ACC, and the ACC can require the homeowner to return the property to its original condition and in compliance to our CC&R’s. The ACC was very clear in their original violation notice, and equally as clear that they had not changed their minds, after reading the homeowners request for waver. The ACC sent a letter of denial to the management company to be forwarded to the homeowner.
At this point, the board president stepped in to say we are not going to apply the rules of our CC&R’s in this situation. He had pictures showing the property to be in non-compliance with our CC&R’s a year ago.

The rules that we feel that will be most threatened by the actions of our HOA president are Section 9.8 -Sight Distance Easement which requires a field of vision to be maintained to enable drivers to see small children playing or riding along the sidewalk and in the street when backing vehicles out of a driveway; and Section 5.4 – Landscaping and Exterior Maintenance; and Section 5.4 – ACC Plan Review

Question for you folks, had a precedent been established because the ACC had not noticed the violations sooner?

GlenL (Ohio)
Posts: 5,491

Posted:

You really need a legal opinion on this but IMO no, most documents should have in them somewhere a waiver clause that states: No covenants, restrictions, conditions, obligations or provisions contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur. (or words to that effect)

The Board needs to enforce the covenants and they usually have two years (check local listings) after they become aware of the violation to enforce. To see what can happen if you try to be "nice" or think the violation "looks good" see:
http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/95055/view/topic/Default.aspx

Studies show that 5 out of 4 people have problems with fractions

MicheleD (Kentucky)
Posts: 4,491

Posted:

You will also need to check with any HOA or COA laws or statutes in your state or locality regarding any so-called statute of limitations on approvals.

We don't have such a limitation and have successfully brought residents into compliance regarding violations that were not noticed or reported for as long as 3 years. (an illegal shed that was just below the fence line in one case).

But I also doubt that the board president can reverse an ACC decision. The only time that can happen in our controlling documents is if it's the entire board reversing. But in our entire existence, I've not known that to ever happen.

DanielH1 (California)
Posts: 482

Posted:

Given the new information, I would write a short letter with one point per paragraph:

* Homeowner is non-compliant with CC&Rs and has received violation notices
* President stated that CC&Rs will not be enforced in this case
* Mr. President, why won't the CC&Rs be enforced in this case?

In a subsequent letter, you can write:

* President has stated that CC&Rs will not be enforced in this case with such-and-such reason
* Mr. President, what documents (e.g. Bylaws) gives you (or the Board) the authority to make this decision? Please quote documents.

Just do it step-by-step.

SusanW1 (Michigan)
Posts: 5,202

Posted:

You said:
"At this point, the board president stepped in to say we are not going to apply the rules of our CC&R’s in this situation. He had pictures showing the property to be in non-compliance with our CC&R’s a year ago.'

Is the rest of the board asleep? How can ONE board member make a decision like that?

Was there a motion and vote deciding NOT to enforce the CCRs for this particular offense?

Someone needs to make a motin to act on a violation of CCR codes for (insert address) and see where the vote fall.

It seems your Arch. Committee is weak and the President has too much power.

GeorgeA2 (Oregon)
Posts: 7

Posted:

Once again, I want to thank everyone for your input. Based on your input and the input of an attorney, I've included a revised draft copy of a letter to our HOA president. Please let me know what you think. Thanks again for your input! George

9.16.10

To: ____________, HOA President

Thank you for taking the time to respond to my letter. With regards to the dated photos you mentioned that were taken of CC&R violations at the 150 South Avenue address, they have no relevance, as there are no statutes of limitations with respect to inforcing CC&R violations. The CC&R violations in question are considered “on going”.

For the benefit of interested parties, a homeowner became suspicious of the work completed in the front yard of 150 South Avenue, and asked if the owner had obtained approval. It was learned that the owner had not obtain approval from the ACC. As a result, the homeowner was cited for being in violation of (4) infractions of our CC&R’s each requiring corrective actions. The homeowner contended the violations. The ACC made a second review of the (4) violations and found them to still be appropriate. At this juncture, you (HOA president) stepped forward to state that our CC&R’s would not be applied in this case because the dated pictures showed the work was completed 2 years ago, also because the homeowners have their house up for sale.

By your actions you have failed to uphold our CC&R’s. Not only do our CC&R’s not support your actions, you have put our CC&R’s at risk of not being enforceable in the future. A homeowner can simply refer to a precedent was set when violations were 1. noted, documented and communicated and 2. allowed.

Sections of our CC&R’s that you are putting at risk include:

1. / Section 9.13 – Landscaping and Exterior Maintenance, which helps to preserve the values of our homes; 2. / Section 5.4 – Plan Review, which allows for a qualified group of homeowners to assess an Application for Approval to assure that both the execution and end result of an improvement project complies with our CC&R’s, and is also of high standards, and will maintain the aesthetic integrity and overall quality of our community; and 3. / Section 9.8 -Sight Distance Easement which protects small children from be hit by a vehicle backing out of a driveway by requiring bushes and shrubs within the sight zone to be no taller than 30 inches.

You implied in your letter that similar violations have been allowed in the past. It’s important to recognize that the violations such as the ones at 150 South Avenue have not gone unnoticed. For example, in the last 6 months (2) similar front yard projects that had not received approval from the ACC were addressed in the same manner. In each case, the homeowner was sent a violation letter outlining the infractions and the corrective actions needed to bring the property into compliance with our CC&R’s. In both cases the owners responded positively by completing each of the corrective actions. In both cases the front yards were returned to norm, and in compliance with our CC&R’s.

You stated in your letter that you "disagreed that home values could be affected". To give you some idea of how important CC&R’s are to homeowners, it’s estimated that 50 million Americans live in association-governed communities. About 6000 to 8000 new community associations are formed every year. It’s estimated that 80% of the homeowners who live within these communities do so because they know that CC&R’s help to protect the quality of life and the value of their homes. A recent survey of home owners in our community clearly showed that over 75% of our homeowners feel the same way.

For the reasons mention, I’m asking that you cease-and-desist.

George Andersen
CC: Management Company

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