HOA Violation- Please Advise (foreclose, attorney, house)

[blueeyz911]

I received a violation in January to remove weeds so we did. The compliance date was mid February and the yard was free and clear of weeds. I have pictures of our yard at the first compliance date in February to prove the yard was weed free.

So this week I get a 2nd violation saying that I never complied with the 1st notice because they saw weeds in our yard on April 16th (almost 2 months after the first violation) which as I said, was taken care of. We have been through bottles of weed killer and constant pulling for hours and they keep coming.

So now they are charging me $150.00 for a few weeds (mostly on the side of the house. The front has a few tiny weeds. First of all, I am not paying $150 when I did comply the first time and I feel I should have just received a notice telling me to remove the weeds.

So I have to write a letter or go in person to dispute this. Is this just a common scare tactic? Will this be easy to resolve without having to get an attorney involved? I work for a very large and prestigious law firm so having legal support is not an issue for me. Maybe I should mention this to these pathetic HOA board members who have nothing better to do with their miserable lives then threaten legal action for a few weeds.

If anyone has had a similar situation or has knowledge of this type of violation, please advise. Thanks.

[aiwei]

Did you call the management company and ask about the problem? Sending weed-free picture of yard was nice, but it did not offer any feedback. You need to talk to a person first to get this solved. Like other posts, this might be a mistake and could be taken care of over the phone.
Good luck.

[Captain Bill]

Talk on the telephone to the compliance person, and try to work it out. Do not yell at, or be aggressive with this person. S/he is doing her job, and has to listen to people every day yelling at her, trying to intimidate her, and claiming that she is wrong.

Be very friendly and business like. Understand her position, and try to get her to understand hers. Compliments on her doing her job go a long way. Insults get one nowhere.

If you can't work it out to your satisfaction, then you have the opportunity to present your case to the board of directors. Ask for the procedure and follow it.

[HX_Guy]

Not sure how to deal with the HOA, but look into hiring someone to come out and spray the weeds. It's leaps and bounds better then any store product and costs about $80 for front and back. We had this done and it lasted a good year before we had to respray.

[blueeyz911]

Really, a whole year? Wow that's amazing. We are constantly out there trying to keep the weeds under control. What service did you use?

I plan to call and send a letter and pictures on Monday. If that does not work an attorney friend of mine is going to draft a letter for me. What a pain, seriously. I have a lot of other things to be concerned about and I wish the HOA did too.

[HX_Guy]

We used Nelson's Pest and Weed control two years in a row now, really do recommend them.

They say you should do it every 6 months, but we were ok for at least a year before the weeds started popping up. They recommend you water down the gravel after about a week after they spray to get all the chemicals off the rocks and into the ground.

[Captain Bill]

Originally Posted by blueeyz911

Really, a whole year? Wow that's amazing. We are constantly out there trying to keep the weeds under control. What service did you use?

I plan to call and send a letter and pictures on Monday. If that does not work an attorney friend of mine is going to draft a letter for me. What a pain, seriously. I have a lot of other things to be concerned about and I wish the HOA did too.

You're wasting your time and money by getting an attorney to write a letter at this point, especially if the attorney is not one who specializes in HOA law.

The HOA will be forced to waste the HOA dues money by responding to the letter. But they will have their attorney respond, and it will be a strong response. They are not intimidated by attorney threats.

If there is an appeal procedure in the Rules, and there probably is,then you will need to follow that procedure. The appeal process is there for a purpose. It is to resolve disputes in-house prior to anyone taking legal action and wasting the HOA's dues money. Judges want people to make every effort possible to resolve disputes prior to going to court, and they don't take kindly to people who take up the courts time without attenpting to resolve issues outside of court.

Imagine what a judge would say if you were to go to court, and the HOA attorney tells the judge that the plaintiff did not present his/her appeal to the HOA (using the specified process).

Therefore the BOD has not had the opportunity to hear, review and rule on an appeal of the violation. The attorney will have filed a motion for dismissal, with prejudice, based on a premature and frivolous lawsuit and request the judge to award attorney fees to the HOA.

The judge would probably dismiss the case without prejudice and have you pay the HOA attorney fees for filing a frivolous law suit without following the appeal procedures outlined in the CC&R's or Rules.

Most appeal procedures call for you to schedule to have a hearing at the next board meeting. The entire board of directors will listen to your complaint, review the photos and violation letters, and make their decision.

If the board votes to uphold the violation then is the time to contact your attorney. However, if the compliance person's pictures support the violation, then you will risk wasting your money by filing a law suit and not just paying the fine.

Courts will uphold the rules of the HOA as long as there is a clear violation and the rule that is violated is reasonable (reasonable in the eyes of the judge).

I have served on my HOA board of directors for 4 years, and on the Val Vista Lakes master board for 1 year, and have been faced with several legal situations, so I do have familiarity with the procedures.

My advice to you, if you decide to contact an attorney, is to first make sure that the attorney you use specializes in HOA law. (You wouldn't go to a urologist for a heart problem, and the same reasoning applies to attorney's.)

Provide the attorney with the CC&R's and the Rules and ByLaws, in addition to copies of all your communications with the HOA. The attorney must study your HOA documents, and the violation communications, in order to advise you of the proper procedures to utilize in order to resolve this issue without wasting your money.

[blueeyz911]

Thanks. I am aware of all how the legal process works though. I have been in the legal profession myself for 12 years. I was going to go through the appeal process first with my own letter, pictures, etc. However, I do not intend to go in front of the board members to state my case when there is no case.

The violation is so bogus to begin with- the picture they took shows no weeds whatsoever. After walking on the side of my house yeserday morning, there are NO weeds on the side of my house like they claimed. There were only a few tiny weeds in the front that took less then 5 minutes to pull and they accuse me of not complying with the first violation when if they had done a re-inspect on the compliance date from their 1st letter, they would see that I did comply.

If they think I am going to pay them $150 for that when I just paid that amount for my dues last week, they are crazy. Besides, I'm sure they cannot take someone's house away for a few weeds. Something really needs to be done about HOAs like this.

[blisterpeanuts]

Originally Posted by blueeyz911

Thanks. I am aware of all how the legal process works though. I have been in the legal profession myself for 12 years. I was going to go through the appeal process first with my own letter, pictures, etc. However, I do not intend to go in front of the board members to state my case when there is no case.

I'm no fan of HOAs but it does sound as though you need to go through the process, annoying as it may be, before you can seek legal recourse.

[Captain Bill]

Originally Posted by blueeyz911

Thanks. I am aware of all how the legal process works though. I have been in the legal profession myself for 12 years. I was going to go through the appeal process first with my own letter, pictures, etc. However, I do not intend to go in front of the board members to state my case when there is no case.

The violation is so bogus to begin with- the picture they took shows no weeds whatsoever. After walking on the side of my house yeserday morning, there are NO weeds on the side of my house like they claimed. There were only a few tiny weeds in the front that took less then 5 minutes to pull and they accuse me of not complying with the first violation when if they had done a re-inspect on the compliance date from their 1st letter, they would see that I did comply.

If they think I am going to pay them $150 for that when I just paid that amount for my dues last week, they are crazy. Besides, I'm sure they cannot take someone's house away for a few weeds. Something really needs to be done about HOAs like this.

Being in the legal profession for 12 years, you probably have already researched to find that an HOA in AZ cannot foreclose on a lien for violation type fines

However, they can place a lien on your home when the amount of the fines build up to a certain amount. That is when they will turn it over to their attorney. So you won't be able to sell your home with the lien in place.

They can, and most likely will, have their attorney file a claim in court to collect the unpaid fines that will keep building up, plus court costs and attorney fees.

Also, from being in the legal profession, you are aware that judges want people to make every effort to solve issues outside of the already overcrowded courts. As I mentioned before, the judge will see the appeals process as a means to settle the issue outside of the court room, and in all likelyhood will not look favorably on your refusal to utilize that procedure.

• Your first step is the one you're planning on taking, and that is to speak with the compliance person. If s/he agrees with you then it will be all done.
• If she doesn't, then your next step is to appeal through the HOA process, if there is one in place. Your Rules will tell you if there is an appeal process in place.
• Your next step, if the BOD holds up the fine, would be to get an attorney involved.

It's your choice to decide whether to do it the proper way, or your way. The easiest way is the stated appeal process, if there is one.

If you choose to do it your way, then you can expect the response from the HOA to your attorney to be that there is an appeal process in place for you to show why the violation is not proper, so the board can hear your side and make the final decision; and that you have not utilized that procedure.

At that point, your attorney friend may not be willing to continue writing letters gratis because the letters will do no good. It will continue to cause the HOA to incur attorney fees with their responses, that they will eventually want to be reimbursed for.

I hope for your sake that the compliance director drops the violation, because if they don't and you continue on the course you're contemplating, I'm afraid you may end up paying a lot of attorney fees, including those of the HOA.