July 27, 2010
What Can You Do When the HOA Board Does Not Enforce the Rules?
This is a hot topic. The question sent to me is:
""What can I do about a board that does not enforce the rules? They won’t do anything about people disobeying the rules because they are afraid of retaliation. As a 20 year homeowner, what can I do and where do I start?"
There are many ways to attack this problem. But first, understand that board members are volunteers, they have their hands full these days just trying to keep their HOA or Condo Association "afloat", and they can use help.
So, first, get educated about rules. There are 5 "Enforcement" Primers available on my website for $25 each that will tell you everything you ever wanted to know about rules and enforcing them. And forms to boot! These Primers are intended to assist boards in setting rules and policies that are reasonable, and they being able to enforce them!
Second, run for the board! If you want to help, get your hands in the pot. If you want to know what the board responsibilities are there are two Primers on the website relating to Board Basics (responsibilities) - I (basic) and II (intermediate). There is also an Operations Primer and an Ops forms Primer to assist with operations.
Chronic complainers (about rules enforcement) can become part of the problem. Become part of the solution! Get involved in the leadership in your association. If you are not willing to do that, then at least keep your corner "clean".
Posted by Beth Grimm at 11:42 AM
November 12, 2009
DAVIS STIRLING or Davis Stirling, What is Fair in Hearings in HOAs and Condos?
I continue to get questions relating to hearings, due process, notice, opportunity to confront witnesses, continuous fining, etc. and I will share some of these with you, and then will give my comments. Since this is such a pressing matter, I will post this information on both of my blogs, California HOA & Condo Law Blog and Condolawguru.blog. Here is a conglomeration of 3 emails I received:
“First of all, I enjoy reading your blogs on line and look forward to reading more in the future. I have read your article dated June 15, 2009 relating to the rights of homeowners to confront witnesses in disciplinary hearings. I am an owner in a condo development that has restrictions on [vehicles being parked in the driveway/garbage cans being left out too long/stored items in the garage]. There are some exceptions to the rules made; apparently some people are given more leeway than others. Sometimes the rule is enforced, and sometimes it is not. To complicate things, I have a renter and the renter denies violating any of the rules related to the [thing complained of].
The Notice of Hearing has summoned me to appear before the Board ON ____________ and to “state my position at the Hearing”. Since the notice I received does not provide any details of the alleged violation other than a cursory reference to the Rule allegedly violated, I don’t know how I can “state a case” or get a fair hearing. I do not even know what dates to ask my tenant about or tell him that he was cited. Here are my concerns:
The Notice does not state the date and time when the alleged violations occurred. The Notice does not provide details as to the make, model, color, or license number of vehicles involved in the alleged violations. The Notice does not state that the Board investigated the alleged violations and confirmed the validity of the allegations. Should the Board not provide me with some sort of “evidence” to prove beyond a reasonable doubt that the alleged violations did in fact occur? Isn’t the burden of proof upon the management company and the Board to provide evidence that violations did actually occur and were performed by people for whom I am responsible?
How can I or anyone receiving a Notice of this nature be expected to have a meaningful discussion with my tenant, or to answer the alleged charges of violation without having any information? I would appreciate receiving your comments.”
Here are my comments.
I believe that notices relating to violations should refer to specific violations, giving the date, the time and the violation, and in the matter of parking violations, vehicles should be identified.
Why? Because it is only reasonable to identify the problem so that the owner knows what to respond to at the hearing. I had personal experience with a situation 3 times in a condo where I had a tenant and violations were reported. All 3 times the HOA had received information on the WRONG UNIT. The violator was in the unit next door.
I believe that owners have the right to know how the information was reported – a written complaint, a log presented by the manager or person in charge of inspections, etc. It is my belief that no complaint should be addressed unless it is presented in writing to the board, or personally verified by management or a board appointed representative.
Why? Because in my vast experience in handling violations, I OFTEN FIND that people complain because they don’t like the neighbors, that they tend to exaggerate when that is the case, that they often change their stories when they are asked exactly what occurred and when, and that boards are often too lax in the way they document problems, and it often comes back to bite them.
I don’t believe that boards must send out continuous or re-occurring hearing notices for continuing or re-occuring violations IF THE BOARD HAS SET UP THE PROCESS SO THAT THE OWNER CLEARLY KNOWS WHAT TO EXPECT IF THE SAME VIOLATIONS CONTINUE TO OCCUR but I do believe that Boards must have a process whereby the owner is notified each time after the first time (the first time does require a hearing) that a fine is imposed, and why (meaning notice of the date, time, description of the violation, etc.). This is the only way that an owner has a reasonable chance of addressing the action that was taken in a meaningful way (if there is a meaningful excuse or extenuating circumstances that might apply).
I do not believe that owners need the opportunity to CONFRONT witnesses. I am not against having everyone in the same room to talk about what is happening and in many cases, it helps to do so and many boards and owners are fine with this. However, many boards lack the skills to handle a situation where the confrontation becomes uncomfortable. And besides, a picture is worth a 1000 words so boards, why not require a dated picture of the violation whenever possible. With digital cameras, it’s quite easy to eliminate the need for an argument.
That’s my story, and I’m stickin’ to it, yes, I know someone is going to tell me next that “Davis Stirling” says that boards cannot impose recurring fines without a hearing for each violation and that “Davis Stirling” says owners should be able to confront witnesses. I think they are talking about “Davis Stirling” the website (which is a bunch of lawyers, just like me, with a different take on the law) because THE DAVIS STIRLING ACT – THE LAW - does not get that specific.
Posted by Beth Grimm at 8:58 PM
May 31, 2009
HOA and CONDO Association Fines -How Many Hearings Are Required!
In case you missed it, there has been a discussion on the website of a colleague about what is required with regard to fine hearings. Question: is there a hearing required every time that a fine is being considered for a violation of the rules or other governing documents?
Some legal practitioners believe a hearing is required for each violation, except continuing violations for which a daily or weekly or other fines might be imposed. Some believe that more than one fine can be imposed - but there should be a limit, for example, one colleague has expressed a "3 Strikes - Rule" philosophy, essentially suggesting that the purpose of fines is to deter bad conduct and "If three fines haven’t done the job, then fines are not going to work and the board must either stop wasting its time on enforcement attempts for this violation, or move on to injunctive relief.".
I have a different take on fining for repeat violations. I do agree that it is an important subject. I take a different approach because I believe that volunteer board members should not have to be parents, reminding their owners who are acting like irresponsible or spiteful "children" again and again and again that there are ramifications to bad behavior.
So, I thought I would write and give my take on fining for repeat or continuing violations ... without the need for multiple hearings.
My position is that it is appropriate for HOA and Condo Association Boards to impose multiple fines for bad behavior without having multiple hearings. I suggest specifically addressing the ramifications of reoccurring and/or continuing violations in multiple formats, and the more the better, ... at the least, (1) in the fine policy, (2) in the letter to the owner who is subject to disciplinary action, (3) in the hearing, and (4) in writing in the hearing decision letter to the owner. That provides at least 4 opportunities for an owner who is subject to the fines to understand that the conduct cannot continue without repercussions!
I recommend the following theme be included in all 4 venues: “Continuing and/or re-occurring fines may be imposed for continuing or re-occurring violations of the same or similar nature.” (Of course, the final hearing decision letter would say "A fine will be imposed each time the violation noted below is repeated [or each day that the violation continues, or for ongoing nuisances like loud music plus other loud disturbances - each time a loud disturbance from your unit occurs, among those noted below].
Does that satisfy any potential "due process" requirements (if in fact they exist - there is a whole other debate on how far "due process" invades HOAs and Condo Associations since they are not governmental agencies). I think "yes".
With 4 notices in the least (and 5 or more if explanatory warning letters are sent, which I believe are a very good idea, prior to the pre-hearing notice letter) that continuing or re-occurring violations will subject them to continuing or re-occurring fines, what excuse does the owner have for not correcting the conduct? As far as I am concerned, this way of dealing with the continuing and re-occurring bad conduct constitutes reasonable due process.
I mean, how many times should you have to take time out of your life and money out of the association coffers to "remind" someone ...
Not park resident vehicles in guest parking spaces
Not let your dog bark all day and night
Not let your guests create a disturbance at the pool such that others cannot enjoy it
Not disrupt an association meeting
Not let your children vandalize property or throw rocks and debris at passing cars
Not to leave the dog poop behind for others to step in
I could go on and on ... but 4 warnings should be due process enough for any continuing OR re-occurring similarly offensive behavior. And, yes, I know that fines are hard to collect; however, if a board wants to, at any time, it can go to small claims court to enforce the fines, and if it does not want to expend the time or money to do that, remember that if the fines letters are in the file, they and the total fines due can be presented with any escrow demand that might come through from sale or refinance of the property.
So - there are ways to make life a bit easier if you are a board member, and ways to engender more accountability if you are an owner who (or whose tenants) are habitual rules violators.
Just my "two cents worth" on the subject!
And for the other "98 cents" worth, visit the California Condo Guru where you will find free articles on enforcement, FYIs on fines, hearings, and adoption requirements for new rules and rule modifications, and best of all, incredibly useful (and affordable) Primers. Be sure to peruse the Publications and/or the Webstore to find the set of Enforcement Primers which were written to assist boards in formulating enforcement policies and practices that work. You will find a series of 5 Enforcement Primers that cover basic rule setting and enforcement, sample forms and letters, and for everyone who encounters problematic neighbors or violators, advanced Primers on Noise and Nuisance issues, Neighbor to Neighbor disputes, and Parking and Towing matters. It is my belief that success in enforcement comes through organized, professional and business-like handling of these matters, combined with good efforts to engender cooperation, communication, and peer pressure as part of the process of getting owners to conform voluntarily with the rules and regulations of the association. You will recognize that as a recurring theme throughout the tools I produce for the benefit of boards, owners, managers, association vendors and anyone who deals with home owner and condominium owner associations.
Posted by Beth Grimm at 6:44 PM
April 2, 2009
A FLAG FLYING STORY WITH A GOOD ENDING
I don't know about you, but I like a flag flying story with a good ending. So many times, people take a "no win" position and stand firm to the "end", which usually is not good. A reader sent me this email and I am always gratified when the information I publish helps to resolve a delicate situation (or an indelicate one!).
"Dear Beth,
I want to thank you for your website. It was extremely helpful with my situation.
Last week, the head of the HOA came to my townhouse and told me that my American flag would have to come down because it is on 'common use area'. It is actually on the wood directly next to my front door.
It is in no way a safety issue for anyone. It has been in the same place for the nine years that I have been renting this townhome. He told me I could put it out back one my patio. I said that would not be happening because in our rule book only American flags can fly.
He said the rule book was vague and I would still have to remove it. I showed him the flag that was on my fathers coffin, a WWII vet, and only a court order would bring my flag down. Then I found out about your website from my wonderful next door neighbor. I did my homework and went to the board meeting with my proposed resolution and with a copy of H.R.42. When I asked when I could bring up 'new business', the head of the board asked me what it was about and that I really was not supposed to be there because I was a renter. I explained my resolution in detail and he said not to worry about my flag and that it can stay. I said thank you and left the meeting. ... Again, thank you for what you do.
TC
God Bless America!"
Posted by Beth Grimm at 3:37 PM