We were given permission to a owner’s unit checking for a leak problem we had. When we were in there maintenance noticed they had three cats instead of the two allowed. Several of the board members want to send the owner a notice to get rid of one of the cats. Can we do that since we were only in there for something else?
As the writer indicates that the observers were in the unit with permission of the owner, and unless the organizational documents specifically indicate otherwise, I see no reason why a notice cannot be issued by the Board. Indeed, having learned through its employees or agents that a violation of the rules was being committed, a board may have a duty to send such a notice.
Lewis Montana
Levine & Montana
1019 Park Street – P.O. Box 668
Peekskill, New York 10566
(914) 737-3515
Levine_Montana@msn.com
Homeowners’ Associations are not subject to the strict evidentiary requirements of criminal searches by police. The Association was in the premises with permission of the owner and any information gathered while there would be fully admissible in a civil action in a court of law. It therefore could be used in a covenant enforcement matter.
My legal opinion is that the Association can contact the owner, notify them of the violation, and request compliance.
David G. Hellmuth
Attorney at Law
Direct dial: (952) 746-2107
dhellmuth@hjlawfirm.com
8050 West 78th Street
Edina, MN 55439
Phn: (952) 941-4005
Fax: (952) 941-2337
I see no reason why not. If there is a violation of the rules
regardless of how discovered, they should be enforced.
Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
856-414-1800
Fax:267-219-4838
The question seems related to issues arising under unreasonable search arguments addressed in criminal proceedings. Those issues are not on point in a condominium setting because we are dealing with actions between private parties (co-owner and Association) as opposed to actions between the government and its citizens. In the latter case, there are constitutional questions concerning restraints on the police powers of the government, but in the case of an HOA those same restraints do not apply.
A violation is a violation regardless of how the Board finds out about it.
So, assuming that the board has the express power, either under state law or the restrictive covenants, to adopt reasonable rules and regulations and that such rules and regulations were clearly communicated to the members, then my recommendation would be for the party who observed the rule violation to sign and submit a violation report to the board. Then, the board should notify the owner who has allegedly violated the rules of the reported violation and offer that party an opportunity to attend a hearing before the board during which said party would have the opportunity to present any testimony or evidence as to the claimed violation. Once the violation hearing has been conducted, assuming the alleged violating owner requested such, the board would, in turn, make its best business decision after considering any evidence or testimony submitted by the alleged offending member along with the violation report and advise the alleged violating owner of its decision.
Homeowners’ Associations are not subject to the strict evidentiary requirements of criminal searches by police. The Association was in the premises with permission of the owner and any information gathered while there would be fully admissible in a civil action in a court of law. It therefore could be used in a covenant enforcement matter.
Thrasher Buschmann & Voelkel PC
Stephen Buschmann
151 N. Delaware St.
Suite 1900
Indianapolis IN 46204-2505
(317) 686-4773
buschmann@indiana-attorneys.com
Stephen Buschmann
151 N. Delaware St.
Suite 1900
Indianapolis IN 46204-2505
(317) 686-4773
buschmann@indiana-attorneys.com
David G. Hellmuth
Attorney at Law
Direct dial: (952) 746-2107
dhellmuth@hjlawfirm.com
8050 West 78th Street
Edina, MN 55439
Phn: (952) 941-4005
Fax: (952) 941-2337
I see no reason why not. If there is a violation of the rules
regardless of how discovered, they should be enforced.
Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
856-414-1800
Fax:267-219-4838
The question seems related to issues arising under unreasonable search arguments addressed in criminal proceedings. Those issues are not on point in a condominium setting because we are dealing with actions between private parties (co-owner and Association) as opposed to actions between the government and its citizens. In the latter case, there are constitutional questions concerning restraints on the police powers of the government, but in the case of an HOA those same restraints do not apply.
Nonetheless, things or conditions that are discovered In the course of a lawful inspection are not off-bounds for enforcement purposes. The maintenance crew was in the unit with the owner’s permission and they cannot be expected to “unsee” things that were in open view while in the unit. The Board is free to proceed with enforcement of the limit on the permissible number of pets in the unit.
Edward Zelmanski
Zelmanski, Danner & Fioritto, PLLC
Attorneys at Law
44670 Ann Arbor Road, Suite 170
Plymouth, Michigan 48170
(734) 459-0062 Fax: (734) 459-5313
ezelmanski@zdfattorneys.com
Edward Zelmanski
Zelmanski, Danner & Fioritto, PLLC
Attorneys at Law
44670 Ann Arbor Road, Suite 170
Plymouth, Michigan 48170
(734) 459-0062 Fax: (734) 459-5313
ezelmanski@zdfattorneys.com
A violation is a violation regardless of how the Board finds out about it.
So, assuming that the board has the express power, either under state law or the restrictive covenants, to adopt reasonable rules and regulations and that such rules and regulations were clearly communicated to the members, then my recommendation would be for the party who observed the rule violation to sign and submit a violation report to the board. Then, the board should notify the owner who has allegedly violated the rules of the reported violation and offer that party an opportunity to attend a hearing before the board during which said party would have the opportunity to present any testimony or evidence as to the claimed violation. Once the violation hearing has been conducted, assuming the alleged violating owner requested such, the board would, in turn, make its best business decision after considering any evidence or testimony submitted by the alleged offending member along with the violation report and advise the alleged violating owner of its decision.
Patrick F. O’Dea, Esq.
Nelson Mullins Riley & Scarborough, LLP
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
Tel: 843.946.5631
patrick.odea@nelsonmullins.com
www.nelsonmullins.com
Nelson Mullins Riley & Scarborough, LLP
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
Tel: 843.946.5631
patrick.odea@nelsonmullins.com
www.nelsonmullins.com
This is not a criminal situation. I would say yes – because the Association representative/agent was authorized to be in there and saw what was in plain view. If the person was opening doors that had nothing to do with the leak and found a room with 3 cats, then my answer would probably be different.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com