does the HOA listen?

[ak007]

I have a question regarding HOA covenants and Board decisions.

Recently, I was accused of dumpster violations. The accusations went from "overflowing" the dumpster (by the property manager) to putting a "bed frame and other debris" into the dumpster (notice of fines assessed without a hearing) then to putting a "broken bed" into the dumpster (decision of the Board after a Board meeting). Also, the property manager quoted me a fee of $500 (when she called to harass me) then $50 fine and a $150 cost of removal (the cost of removal varies; they could not produce any records showing the cost of removal for the bed frame; I requested that because I was confident that there was no bed frame in the dumpster). In other words, the HOA was very inconsistent. It sounds like they have a complainant without a written report, so his or her story changes throughout the whole time as well. I went to a Board meeting to refute the allegation; but only 2 board members were there, along with the property manager. A couple days later, I received a decision from the Board that they would NOT waive the fees. They did not explain why or present any evidence. (They did not present any evidence either at the Board meeting). They gave me a few sections of the CC&Rs that said the Board decision is final and I need to pay the fine within X days and a provision that states that I need to pay the association back for maintenance and repair costs due to any negligence or willful misconduct that is not covered by insurance. My questions are: Could I still dispute the Board's decision, or is that decision final? Could the Board fine homeowners without presenting written evidence? Don't they need to show negligence or willful misconduct? Anything I could do since there is no notice or hearing before I was fined?

Other facts are:

A. The Property Manager acts like she is a member of the Board and her opinion dominates the Board. She told me I was guilty a few hours before I met with the Board. Even when I met with the Board, she's making decisions already.

When the property manager first called me, she sounded very pissed off, and conversation started like this:

PM: Did you moved?
Me: Yes
PM: Was something thrown away?
Me: Yes, a bed frame.
PM: I am....HOA property manager, and you are fine $500.
Me: Why?
PM: Because you overflown the dumpster and threw trashes of bag in there. We had to hire a company to remove those items.
Me: I moved out already. The house was just off the market, and they are staging furnitures. There are no bags of trashes.
PM: Tell the Board. Tell the Board.
Me: Could I have the receipt of the list of the items from the garbage company?
PM: Yes. You will receive a bill in 2 weeks that you need to pay. I will provide a receipt itemizing the items in the dumpster.

I managed to get the Board's e mail, and the Property Manager hang up on me when I asked for more details regarding the violation and the items in the dumpster.

Thereafter, I received a series of written threats from her.

B. I presented evidence at the Board meeting showing why I did not dump the bed frame in the dumpster. Because they are staging furnitures, my realtor drafted a letter to the Board explaining that there are no trash and debris in the house because she was showing the house/ the house was in the market for sale, and that I might have mentioned that a bed frame was thrown away, because she dumped a bed frame away after it was returned to her. Basically, it was raining, the rain destroyed the cover of the bed frame when it arrived at her place; so she wanted it to be broken down and thrown away; but she did not throw it in the association dumpster since the bed frame was transported to her place already. I also provided evidence that I have moved out completely already: change of address, MLS listing, etc.

C. Anyways, the Board did not explain at all why they did not waive the fines. The Property Manager could not produce the itemized list from the garbage company. They did not have pictures, although the property manager claimed that there were pictures on e-mail(I think she was threatening me). They kept saying that they needed to check with the person who complained, so I dont think they have a written report. And the person who complained said that 6-8 people were moving stuff, so he or she is clearly making stuff up.

I also told them that they need to provide notice and a hearing before they could fine. They ignored that also.

1. Do I have a right to know the basis of the Board's decision? What are my recourse?

2. Could I still dispute the Board's decision, or is that decision final?

3. Could the Board fine homeowners without presenting written evidence?

4. Don't they need to show negligence or willful misconduct?

 

[seniorjudge]

What do the CCRs say in answer to your questions?

 

[ak007]

Here's what I found from the CC&R:

1. Do I have a right to know the basis of the Board's decision? What are my recourse?

I cannot find any provisions in the CC&R regarding this.

2. Could I still dispute the Board's decision, or is that decision final?

The Board gave me a copy of the Owner's Compliance paragraph as follows:

-- Owner's Compliance. Each owner, tenant or occupant of a lot shall comply with the provisions of the Declaration, and (to the extent they are not in conflict with the Declaration) the Articles and Bylaws, and the decisions and resolutions of the Association or the Board, as lawfully amended from time to time. Failure to comply with any such provisions, decisions or resolutions shall be grounds for an action i) to recover sums due, 2) for damages, 3) for injunctive relief, or 4) for costs and attorney fees or 5) any combination of the foregoing.

Other provisions:

- Owner's right and easements for utilities: In the event of a dispute between owners with respect to the repair or rebuilding of said utilities facilities, or with respect to the sharing of the cost thereof, upon written request of one of such owners addressed to the Association, the matter shall be submitted to the arbitration within 60 days pursuant to the rules of the AAA, and the decision of the Arbitrators shall bef inal and conclusive on the parties.

-- Enforcement: The Association or any owner shall the right to enforce by any proceeding at law or in equity, all restrictions, conditions or convenants, reservations, liens and charges now or hreafter imposed by the provisions of this Declaration, the Articles and the Bylaws, and in such action shall be entitled to recover reasonable attorney's fees as are ordered by the Court.

-- Binding Arbitration: In case of any claim or dispute between the Declarant, its builder, general contractor, or broker, or their agents or employees on the one hand; any lot owners on the other hand, which claim or dispute relates to the rights/ or duties of the parties under the project documents; or relates to the design or common area deficiencies, the procedure shall be as follows: The aggrieved party or parties shall notify the other party or parties of the grievance, in writing. When such a notice is received by Declarant, it shall promptly respond with an investigation, inspection, meeting, discussion or other action reasonably appropriate to the circumstances. Appropriate action shall include, wtihout limitation, prompt communication with the aggrieved party or parties, and a proposed course of action to resolve the problem. All parties involved in this matter shall negotiate in good faith attempt to amicably resolve the problem. If the parties are unable to resolve the problem with a reasonable period of time (not to exceed 90 days after the first notice of claim or dispute) the matter shall be submitted to binding arbitration pursuant to the rules of the AAA; provided that if the dispute or claim involves a sum not in excess of the jurisdictional limit of the Small Claims Court, the lot owner shall have the option of taking the matter to Small Claims Court in lieu of binding arbitration.

3. Could the Board fine homeowners without presenting written evidence?

Nothing mentioned in the CC&R regarding presenting written evidence.

--Assessments, Liens and Fines: The Association shall have the power to levy and collect assessments in accordance with the provisions of Article IV hereof. The Association may impose fines or take disciplinary action against any owner for failure to pay assessments or for violation of any provision of the project documents. Penalties may include but are not limited to fines, temporary suspension of voting rights, or other appropriate discipline, provided the member is given notice and a hearing as provided in the Bylaws before the imposition of any fine or disciplinary action.

--They gave me a copy of the Rules for Common Area Dumpster Usage dated July 1991 but this is not in my escrow package. None of the other newsletters have a stated fine and cost of removal fees. This document stated that first offense is $50; second offense $100 and third and future offense $200.00. It does not state that there is a cost of removal fee here. It does not state that the Board has to present written evidence.

4. Don't they need to show negligence or willful misconduct?

Section 5.1A is what the Board quoted: Confused because the garbage is owned by Waste Management; not by Association; and it does say due to negligence or willful misconduct of any owner of any repair or maintenance cost. The other provisions state that garbage and refuse cost is a common expense of the Association.

-5.1A Maintenance. The Association shall maintain and repair the following:
(1) The common area, all improvements and landscaping thereon, and all property owned by the Association, including without limitation, pool, cabana and other recreational facilities, landscape strips, restricted common areas, parking areas, walkways, driveways, soundwalls (except the repainting of the interior side of the wall which shall be the responsibility of hte owner on which that portion of the soundwall is located), irrigation systems, lighting fixtures and utility, sewer or drainage systems not maintained by a public entity, utility company or improvement district. Notwithstanding the foregoing, each owner, at the owner's cost, shall maintain and repair the automatic garage door opener installed on the restricted common area garage appurtenant to the owner's lot.
(2) The landscaping in the unfenced year areas of each lot.... Maintenance shall include regular fertilization, irrigation and other garden management practice necessary to promote a healthy, weed free environment for optimum plant growth.

If the Assocation incurs any maintenance or repair costs because of the willful or negligent act or omission of any owner or the owner's agents, occupants, or invitees and such cost was not covered by insurance maintained by the Association, the Association shall charge the responsible owner who immediately pay the charge to the Association together with intrest thereon at the rate of 12% per annum from the date the cost was incurred by the Association until the date the charge is paid by the owner. If the owner disputes the charge, the owner shall be entitled to a notice and a hearing as provided in the Bylaws before the charge may be collected.

-- 7.15 Liability of Owners for Damage to Common Area: The owner of each lost shall be liable to the Association for all damage to the common area improvements (including landscaping) caused by such owner or the owner's agents, occupants, invitees or pets, except for the portion of damage covered by insurance carried by the Association. The responsible owner shall be charged with the cost of repairing such damage as described in Seciton 5.1A.

Other provisions:

-- Insurance includes a hazard policy insuring all improvements and fixtures owned by the Association; a comprehensive general liability policy insuring the Association, its agents and the owners and their respective family members against any liability incident to the ownership or use of the common area or any other Association owned or maintained real or personal property; worker's compensation insurance; fidelity bonds; flood insurance; officers and directors liability insurance and such other insurance as the Board in its discretion considers necessary or advisable.

--Garbage and Refuse Pick up: The Association shall provide for garbage and refuse pick up for all lots within the property. The type of garbage removal service shall be based on the service available from the garbage company that serves the property.

-- Use Restrictions, Garbage and Refuse Disposals: All rubbish, trash and garbage shall be regularly removed from the lots, and shall not be allowed to accumulate thereon. Trash, garbage and other waste shall not be kept except in sanitary containers. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition and shall be screened from viewing of neighboring losts, common areas and streets. The Association shall provide for garbae and refuse pick ups at centralized locations in the project, the cost of which shall be a common expense of the Association.

-- Adoption of Rules: The Association or the Board may adopt reasonable rules not inconsistent with this Declaration realting to the use of the common area and all facilities thereon, and the conduct of owners and their tenants and guest with respect to the property and other owners.

--Delegation: The Association, the Board, and the officers of the Association shall have the power to delegate their authority and powers to committees, officers or employees of the Association, or to a manager employed by the Association, provided that the Board shall not delegate its responsibility:
(2) to conduct hearings concerning compliance by an owner or his tenant, lessee, guest or invitee with the Declaration, Bylaws or rules and regulations promulgated by the Board;
(3) to make a decision to levy monetary fines, impose special assessments against individual units, temporarily suspend an owner's right as a member of the Association or otherwise impose discipline;
(4) to make a decision to levy regular or special assessments; or
(5) to make a decision to bring suit, record a claim of lien or institute foreclosure proceedings for default in payment of assessements.

-- Consent to Action: Unless the holders of at least 2/3 of the first mortgages based upon one vote for each first mortgage or deed of trust owned, or 2/3 of the owners of the individual lots in the project have given their prior written approval, the Association and/or the owners shall not be entitled to:
(b) change the method of determining obligations, assessments or dues or other charges which may be levied against an owner
(e) use hazard insurance proceeds for losses to any Association common property for other than the repair, replacement or reconstruction of such common area property.

-- Owner's Right and Obligation to Maintain and Repair: Except for those portions of the project which the Association is required to maintain and repair, each lot owner shall, at his sole cost and expense, maintain and repair his lot and all improvements (including any fencing) and any landscaping within the fenced areas on the owner's lot, keeping the same in good condition.

 

[ak007]

anyone has any insights?

 

[seniorjudge]

anyone has any insights?

You've answered your own questions; is there something else you need to know?

 

[ak007]

I want to know whether I have a right to know the basis of the Board's decision. If I do, to what extent do I have a right to know, because the HOA is not giving me any documents supporting their decisions. I know that the HOA needs to give notice and a hearing as provided in the Bylaws before the imposition of any fine or disciplinary action. Here, they fined me first. I mean the fine is my notice.

Also, could the Board use Section 5.1A to make me pay for the cost of removal, although the garbage and refuse provision states that the cost will be paid by the Association?

 

[seniorjudge]

A court would have to interpret the provisions.

Spend $20K and three years (if it's cheap and quick) by hiring a lawyer and filing a lawsuit against them.