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January 10, 2008
Who Is Responsible for Unsavory Guests?
One of my readers had some questions about responsibility in an HOA. I thought they might be of interest:
1. Who is responsible for adults or other people who visit my children when they are in my home?
An Owner of a unit or lot is responsible for the actions of anyone that resides in or visits their property. The responsibility can also flow to "uninvited" guests as it would be assumed that these guests are on the property because of the residents or visitors of your home.
If these visitors cause a nuisance or destroy property or cause injury and they are identified with a particular unit, it is possible that the Owner of the unit or lot could be held responsible.
2. Do the neighbors have any standing to sue me and try to take my condo away from me for unsubstantiated rumors?
The process to sue and "take someone's condo away" would be involved. In talking about neighbors, and not the Board, the neighbors could file a lawsuit for nuisance or any other viable cause of action (such as if an injury to property or person) was brought. If a neighbor was able to get a judgment, attachment of property is possible, but probably not likely, unless something really eggregious is involved.
In talking about association action through the Board, failure to pay assessments might lead to loss of a unit through foreclosure, but fines if imposed are not a proper basis for foreclosure.
If any owner allows any drug activity in a unit or home and there is criminal activity discovered, an owner could lose their home to the authorities as real property can be seized in some cases, under federal law.
Sometimes threats are tossed about on all sides in a difficult situation where a threatening or unsavory element of society is present, and sometimes things are just overblown. But it is important for owners to understand that whomever they place or allow in their home or on their lot, or whomever they draw into a homeowners association by virtue of the residents or guests of their home can get them sued or arrested - so it is important to pay attention to these kinds of issues.
I have seen many situations where owners placed tenants that were involved with a criminal element that became a real problem, and then the owners wanted the Association to solve the problem, when it was really the owner's responsibility to do the "cleanup" of the situation.
In any given hearing or court proceeding, the outcome will be based on what the hearing officer or judge believes. A hearing officer will not believe unsubstantiated rumors; however, in a civil court, all one party has to prove is that it is more likely than not that a situation occurred, which can be proved by circumstancial evidence. And there are elements of a case that need to be proved, such as, in a nuisance claim, that there is a nuisance, and in a property damage claim, that the perpetrator was the cause of the damage. These are simple paraphrasing of what can be complicated legal claims and theories, but intended only to make the point that due process requires proof of some kind (to be believed by the board, the hearing officer, judge or jury) before disciplinary action or legal punishment can be imposed.
So it all comes down to proof that is offered and what the hearing officer believes.
3. What can I do to protect myself from further harassment or legal action?
The best thing to do in the event an owner is worried about what might happen because of visitors to the residence is to have the visitors meet residents of the home outside the complex and/or seek legal counsel to assist and help assess the situation.
Posted by Beth Grimm at January 10, 2008 8:58 PM