HOAleader.com - Tip of the Week - June 28, 2019
Published: Fri, 06/28/19
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Condo/HOA to Tenant: We Kindly Invite You to a Attend Our Next Violation Hearing
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We address tenant violations of your governing documents in this week's tip.
The question is: When you send notice of a hearing, can you require the tenant to attend? Should you even permit a tenant to attend?
As a general rule, our experts focus on the owner first, even if it’s the tenant who’s committing the violations they’re seeking to correct.
“The best practice is to run the hearing through the owners, who have the responsibility to pay fines and deal with their tenants,” says Bill Worrall, vice president of FirstService Residential in Hollywood, Fla., which manages 1,300 condominium and homeowner associations totaling 310,000 residential units. “When you go back to the lease documents, that’s between the tenant and owner. The association isn’t a party, and the tenant doesn’t have any connection with the association, except that tenant needs to comply with the association’s rules and regulations.
“That being said, from a customer service perspective, would I exclude the tenant?” continues Worrall. “Absolutely not. I’m a big proponent of re-engaging those residents to help them get into compliance. I don’t necessarily bring them to hearings or committee meetings, but I definitely work with them to resolve issues.”
That’s generally the perspective of Edward Hoffman Jr., founder of Barrow Hoffman, a law firm based in Warminster, Pa., who has represented community associations for more than 15 years. “The enforcement mechanism is against the unit owner,” he explains. “The ability to enforce the violation and fine is against only the owner, and only after an opportunity to be heard is provided to the owner.
“That being said, some issues are complicated,” adds Hoffman. “So you often invite the tenant to a meeting with the unit owner. But you can’t make the tenant show up.
“We’ve invited the tenant and owner to violation hearings where the owner was on our side, saying, ‘I can’t control the tenant,’” he says. “In some cases, the tenant has come, and we’ve hashed it out, and the situation improved. In other cases, it didn’t improve, and those tenants had to be evicted.
“But you can’t fine the tenant,” he concludes. “You can enforce the governing documents against the tenant, but there’s no privity of contract there between the tenant and the association. You can’t assess a fine against a party with whom the association isn’t contractually bound to.”
The process is flexible, if that’s the right word, for Scott E. Pointner, an attorney at Rathje & Woodward in Wheaton, Ill., who's been representing HOAs and condos—ranging from 4-unit condos to 1,800-plus unit lake associations—for nearly 20 years.
Find out why, along with situations where an expert approaches tenants first, in Tenants: Please Report to Your Condo/HOA's Violation Hearing, in our new article: https://hoaleader.com/members/3938.cfm
Best regards,
Matt Humphrey
President
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