Imposing Fines for Violations (IL)

ReneeD,
First, I may be reading this wrong and if so probably only you will know, so I ask that as the arbiter here,that's you, give a sense of reasonableness to your own post.

Are you angry or at odds with the CM? Maybe you have a right to be, maybe she doesn't do the job well. But, consider: she does not work for you, you did not hire her, the board did and has every right. What you did do was in effect hire the Board (Elected). You have spun the story so you will be justified and you may well have a valid complaint, I don't know. You have made the Board to appear to be following your documents, but not completely, so therefore if, in your opinion, they did not cross the t's and dot the i's, there is no violation of the rules.......thus, ALL their decisions are suspect, not because they are suspect, but because you say so. Not likely to be that way, is it?
Go to the Board meetings, agree the fines are valid and try to change the procedure, if you can't or if you can, either way, offer to help........have patience, if you are right in some way, have patience, just don't flush the board down the drain because someone (you maybe), broke the rules. I hear what you are saying, I understand after a long, long time of association living, picking an issue and beating the board over the head with it, will not accomplish what you are concerned about. Not sure what your agenda is, but your post reflects personal agenda as much as constructive comment. Be part of the association......the good, the bad, and the ugly.
If I lived there, as an owner, I would say, follow the rules and don't trash up my neighborhood. If everyone followed the rules, there would not be an issue of how the rules are enforced, in this case. You want to change the rules, more power to you, THAT is your right.

I agree with Glen that I hope the GM is taking pictures of the garbage can violations

However, the fact that a homeowner could easily rack up $400 in fines before the next BOD meeting is really sort of the homeowner's fault.

If the homeowner would correct the violation upon receipt of first notice, there is no problem, right?

Renee,

I think the A/C violation notices and fines are being handled pretty much as they would be in most assn's. Here's what our assn does. Our prop mgr (PM) is resp. for checking the properties (we have 1,710) for violations. She sends the notices and also issues the fines accordingly and in accordance with the board's adopted enforcement policy. The BOD does not have to approve the notices or the fines. Our BOD meets each month and will hear any member who appears to discuss an appeal of a violation notice. Once the member contacts the PM or writes a letter to dispute the violation and issue an appeal the fines stop. This is part of the due process procedure. As long as a case is being appealed the fines cannot continue to accrue. The first notice is a friendly reminder with 10 days to cure; the second and third notices contain a $50 and $100 fine, respectively and a 10 day cure period. The final notice advises the owner their account may be turned over to legal counsel if not cured w/i 7 days and carries a $250 fine. The board has the authority to waive the fines after meeting with the member and has done this on many occasions.

Because the policy states a complaint must come from an owner, a resident or a member of the BOD, does not register the GM's "complaints" invalid. The GM is acting on behalf of the BOD and at their direction.

The policy your board has adopted should have been mailed to all the members. Any member who disputes the violation should contact the GM or the BOD immediately to register their appeal. If they do not then they cannot complain about the fines mounting up while they decide whether or not to cure the violation.

The only problem I would have with your system is if fines continue to accrue while a member is waiting to meet with the board to appeal the violation. IMO, that would not be proper and should be changed. Other than that, I see nothing wrong with the system.

Robert, quite frankly I’m offended that an HOA is racking up $400.00 fines for a GC violation, especially if it is a first offense. The purpose of the fine is to make someone comply with the documents they agreed to be bound with, not to make money. Now if they violate a covenant and are properly warned, I have no problem fining them for subsequent violations. As to taking pictures to prove the violation; why on earth wouldn’t you? In this day and age when every cell phone has a camera that dates and time stamps a picture it makes sense and gives you incontrovertible proof.

Glen,
Do I agree a $400 fine is ridiculous? of course. Do I think it is a board decision, yes, but, the board speaks for the people, we can't speak for this board, only the owners can.
Renee is certainly not running on stupid either, no doubt of that and her position is valid, up to a point. She is off the board, but, if the answer she seeks is: is a $400 fine reasonable for the offense, I vote no, but incorrect? I see from her latest posts, the board has begun to make procedural changes, so they must agree with us also, and with Renee. But is a $400 fine proper for this offense, the board is charged with the decision. Does the violator have a right to speak their case.......we would hope so. I also think the manager should be a matter of discussion between Renee and the Board.

Hi Renee,

I’m in IL, too (I recall you had posted previously on here). What is required under IL law is different from what I am reading is done in AZ (IMO). It is my understanding that no fines can be assessed until after the enforcement process has been completed and the Board votes.

This is our enforcement process. It is in our Rules/Regs for both the condominiums HOA and the Master HOA (single family homes plus 2 condo HOAs). It is based on the IL Condo act and was reviewed by our HOA attorney (Kovitz, Shifrin, Nesbit). Go to their website for pertinent articles on enforcement and the IL Condo act:
http://www.ksnlaw.com/?p=1720
http://www.ksnlaw.com/?p=1700

1. Any owner witnessing a violation fills out a violation form and submits it to the BOD, via the PM. There is a standard form for this purpose.

2. With receipt, the Board (via the PM) sends a form letter to the unit owner accused of the violation (Notice of Violation and Hearing) stating that there will be a hearing to further investigate this matter. The owner is advised that the hearing will proceed in the owner’s absence.

3. At this hearing, the Board explains what the alleged violation is and listens to the accused HO. Questions may be asked.

4. At completion, the accused HO is told they are welcome to stay for the regular Board meeting which will follow a closed executive session (that same evening). The outcome of the hearing will be voted on then. In addition, a letter will be sent to the HO formally advising them of the outcome (this is also a standard form letter, called a Notice of Determination).

5. Then the Board convenes in executive session (ES) to determine what, if any, action to take to enforce compliance.

6. The Board will vote during the regular Board meeting on the remedy/action as result of the hearing, and discussion during ES.

A few additional aspects of our enforcement process: the PM Co. has an inspector walk the property monthly looking for needed maintenance and will also note certain violations (usually doggy poop) which the Board will confirm before a letter is sent to the HO. In these situations a Board member then becomes the accuser and submits the complaint as our governing docs require a HO to submit a complaint (a non member such as the PM or property inspector cannot submit a complaint).

Also, the Board may send a “friendly” reminder notice (standard form) for some 1st timers and some minor violations rather than a Notice of Violation and Hearing.

The action resulting from the hearing may be:

No violation; violation but no fine; violation with a fine (we have a tiered fine system – $50, 100, 250, 300). A date of compliance is also included, and there is language stating that the action of the Board is final (no appeal process).

We rarely have daily fines accruing, but there have been situations where it has been done WHEN the above did not result in compliance and a 2nd notice is sent. The whole enforcement process is followed and the Board votes on this – these fines are not automatically begun without due process having been followed. The Notice of Determination will state that a certain amount will be charged daily (usually ~$5-10) until the HO has complied, and they should notify the Board (via the PM in writing) that they have complied.

In our Rules/Regs, we adopted a rule that uses the same requirement per our Village Ordinance for garbage cans. This violation tends to get the friendly reminder letter, athough there have been a few repeat offenders who did go through the whole process.

You said:
“Since I know for a fact these fines are not being discussed in Executive Session the homeowner is not notified in writing of the BOD's determination because those fines have already been assessed against their account.”

Are you saying there is no ES prior to the Board vote on a violation? That fines are assessed prior to the hearing and enforcement process I described above? And, there is no Notice of Determination sent to the HO prior to the fines being assessed? Have your HOA Rules/Regs been reviewed by a HOA attorney? IMHO, either the enforcement process is not understood and therefore implemented improperly, or, it was not properly written. I am assuming your HOA is governed under the IL Condo Act.

Sorry for being so long winded.
I hope this helps,
Bonnie

I can see such a (seemingly) minor infraction (garbage-can placement) reaching $400 if the infraction is not corrected in a month and a half.

I don't know what the OP's CC&Rs have to say about garbage-can placement, but it's not up to the board or the CC&Rs to necessarily show or educate the resident on where or how to place their garbage cans.

All ours say is that the cans cannot be placed where they can be seen from the front of the house.

And we do forward the covenant in question as part of the notice.

So if the cans are stored daily in front of the garage door, say, then a daily fine can certainly accrue to $400 in a month and a half or two months.

Our first notice is a courtesy notice as well. And it clearly states the potential fine and/or legal action that can be taken if not remedied. The letter warns that if not corrected, the fines will accrue from the date of the original infraction.

If the resident ignores the first warning, they receive a second notice along with the notice of fines, with the date of the original violation and the current accrual, due 30 days from the date of the fine notice.

The fines can continue to accrue daily if the violation is not repaired after the fine notice is provided.

We do also take pictures. It's not that hard.

Hi, Bonnie, thanks for your reply and 'remembering' me from previous posts. I will check out the resources and see what I can find. Kovitz, Shifrin, Nesbith seem to be widely known and I'm sure there are others but, imo, it would be interesting to learn how much revenue is generated on issues related to homeowner associations alone.

Gathering from what you outlined, we are definitely following due process as explained. From what has been said so far, would that mean any homeowner who did respond to either challenge or request a hearing have a legitimate claim to seek reimbursement? I have only been on the BOD since January this year and, I can tell you no such discussion or hearings took place in ES.

I have a few other questions relating to changing wording in our Homeowner Rules & Regulations. One, who exactly has the final word on wording? The PM or BOD? As an association, we pay for their services and, I am under the impression, the PM can guide or suggest what to do but ultimately it rests upon the BOD making final decision. Am I wrong in this thinking? My reasoning is based off of emails transpired with PM directly and trying to get her to understand my viewpoint and, to no avail. This last email I sent her response was 'we are now using the word "must" and, she completely avoided all the other points needing clarification. At this point, I have told her that I stand corrected in BOD's position on revised wording(May 19th meeting). Do I need to bring this up at our July meeting? Also, what would have been the correct manner to effect this change? Would all BOD members voted yea or nay or, only require a motion to approve and second? -Renee

Hi Renee,

You said: “From what has been said so far, would that mean any homeowner who did respond to either challenge or request a hearing have a legitimate claim to seek reimbursement? I have only been on the BOD since January this year and, I can tell you no such discussion or hearings took place in ES.”

It is my understanding that a HO accused of a violation MUST be properly noticed in writing and that a hearing be held BEFORE a fine is assessed. The HO may choose not to attend a hearing. In situations where the HO is unable to attend, we allow them to provide their statement in writing for the BOD to consider at the hearing.

Re seeking reimbursement – I do not have an answer for your situation. Our Notice of Determination states that the action of the BOD is final; we do not have an appeal process.

Do your Rules/Regs outline an enforcement process like or similar to what I outlined?

As for revising your Rules/Regs – this would be a Board or Committee responsibility. Although, the PM may provide some "canned" language used at similar HOAs (ours did that). The Board ultimately approves the Rules/Regs and any amendments or revisions at a properly noticed Board meeting.

Your PM may provide feedback, but the Board has the final say. Also, I highly recommend that your attorney review these prior to finalizing them.

I recall that the IL Condo Act requires that Rules/Regs be provided to the HOs for review prior to the Board formally adopting them (30 days comes to mind).

Here is a document that might be helpful:

A HANDBOOK FOR NEW DIRECTORS
CONDOMINIUM AND HOMEOWNER
ASSOCIATION BOARDS
http://www.ksnlaw.com/E02E82/assets/files/Documents/BoardHandbook2.pdf

Bonnie