After reading all the information and reviewing the Covenants and By-Laws, you may think you have no rights or ways to defend yourself. That is not true. You have two different violation types, each with their own process and each ending up with the same appeals process:

1) Violations of the Design Guidelines

2) Violations of the Covenants (other than the Design Guidelines)

3) How to make Challenges

 

Violations of the Covenants

Section 10.3 of the Covenants has the procedures that are to be taken by the PCA for violations of:

- The Declaration (Covenants). This would be specific restrictions in Section 3

- The By-laws

- The Rules & Regulations

There are exceptions to the notice and hearings procedures for these conditions:

- the failure to pay fees or Assessments in a timely manner

- a violation that has been determined to exist by a court, a regulatory body, or binding arbitration

- a violation of the Design Guidelines or Design Review procedures set forth in Section 3.4

- a violation that has been admitted by the alleged violator

Despite the exceptions, the Board, at its' discretion may give such a notice and schedule a hearing for those exceptions.

 

Section 10.3 has four main clauses: 

a) Procedure for issuing violations and what must be on the violation

b) Additional steps the PCA can take for violations which are not corrected in the allotted time or if a repeated violation occurs of the same violation within a 12 (twelve) month period

c) The details about the hearing before the Board of Directors in an Executive session that can occur

d) Your right to appeal under the By-Laws (Section 12 - Enforcement in the By-Laws)

 

Section 10.3(a) The PCA must send a cease and desist letter for the alleged violation. It must contain:

- the alleged violation

- the action required to abate the violation

- a time period of no less than five (5) days to fix the violation. If this is the first violation of this type, a statement that any further violation of the same provision may result in the imposition of sanctions after notice and hearing 

 

If you fix the problem, no fines can be assessed for first time violations. If you do not fix the problem you can and will be fined by the PCA and face the possibiity that they may correct the problem and charge you the fees to make the correction.

 

Section 10.3(b) The PCA Board may serve you with a hearing request before the Board in an executive session. The notice shall contain the following:

- The nature of the violation

- The time and place of the hearing, which shall not be less than ten (10) days from them giving you the notice

- an invitation to attend the hearing and produce any statement, evidence and witnesses on his/her behalf 

 

Section 10.3(c) Describes the details of the hearing that only seems to be a possibility for the repeated violation, not an initial one. But, since this clause is not contained under 10.3(b), it must stand on its own and provide you the ability to request that same hearing on a first violation. This would not be the recommended first step, though. Later on, a better option is explored pursuant to the By-Laws. Continuing on, this clause indicates that the PCA Board needs to provide proof of a notice that was served and the invitation to participate in that hearing. A copy of the notice along with the date, time and manner of delivery suffices as proof. If you show up at the hearing, this consitutes proof.

 

Section 10.3(d) Describes your right to appeal in accordance with the appeal process in the By-Laws.

 

Failure to correct any violation you receive, or go through a challenge process on the violation, can and will result in fines and possible suspension of owner rights to vote and use the amenities of the community. Plus any fines and fees levied against you can result in a lien placed against your home preventing you from selling it until the fines and fees are paid. A fee/fine schedule is published at the bottom of the Rules and Regulations document. That document changes preiodically and can be found at the First Services Residential Portal.  They are generally published with the updated Design Guidelines document.

 

Because the ultimate appeals process is the same for the Design Guidelines, we are going to go through the Design Guidelines procedures first. But if you want, you can skip directly to the Challenge and Appeals section of this page.

 

 

 

Violations of the Design Guidelines

 

Violations of the Design Guidelnes are covered in Section 3 of the Covenants. The Design Guidelines were primarily intended for Residential Units, which may contain general provisions intended for the entire Community. Section 3.4(a) makes it clear that the Design Guidelines stand on their own and are not to be considered part of the Covenants. 

 

There are no procedures documented in regards to violations of the Design Guidelines by way of the Community-Wide Standards. There are also no documents found detailing Community-Wide standards. Currently they are embedded within the Design Guidelines.

 

There are well documented steps and outcomes for residents that submit approval requests to the Design Review Board (DRB) and are not approved, do not follow the approved design requirements or do not start or complete the work within a one year period of time.

 

Essentially, you either need to correct the violation or proceed on to taking the steps outlined in Article 12 of the By-Laws and possibly Article 18 in the Covenants.

 

 

 

 

Challenge and Appeals

 

OK, now you really come to the actions you can take if you decide to challenge the violation. Before proceeding down this path, make sure you have not misunderstood the legal authority of all the entities involved. Being in a HOA controlled community means that you agree to live under the rules, regulations and guidelines of the community. HOA's are covered under contract law since you have tacitly agreed to this contract as part of buying into the community. This is backed by the laws in every state. What is changing is how some States and local Governments are changing/enacting ordinaces and laws to create exceptions. For instance, it used to be legal for HOA's to prevent residents from displaying the American Flag. The "Freedom to Display the American Flag Act of 2005" was enacted by the Federal Government (after many States had already passed similar legislation). So as the laws and ordinances change, there will be additional exceptions to the limits of authority of HOA's. 

 

If you failed to submit an approval form to the DRB prior to taking an action that violates the Design Guidelines, your chances of winning are very small. If you violate regulations clearly outlined in the Rules & Regulations, your chances of winning are very small. But, sometimes the challenge is a first step in taking larger actions against the HOA. So you must be sure to follow the procedures exactly.

 

Article 12 of the By-Laws covers the Enforcement mechanisms for the Community.

Section 12.1 makes the Covenants Committee the hearing tribunal of the PCA (if the Board has optionally created a Covenants Committee). In our case, it did. We have a Covenants Committee. It has no specific email address yet. Our HOA Community Manager chairs the Covenants Committee.

 

Here is a quick review of the steps for violations:

Section 12(a) Notice: The notice information is exactly as outlined in Section 10.3. The PCA, through the Covenants Committee, or the Board of Directors through its HOA management company, will issue a citation with:

- the alleged violation

- the action required to abate the violation

- a time period of no less than five (5) days to fix the violation. If this is the first violation of this type, a statement that any further violation of the same provision may result in the imposition of sanctions after notice and hearing 

 

Here is a quick review of the steps for repeat violations or when you do not correct the violation:

Section 12(b) Notice of Hearing: If the violations are not corrected in the allotted time or if a repeated violation occurs of the same violation within a 12 (twelve) month period, the PCA may serve such person with a written notice of a hearing to be held by the Covenants Committee or the Board of Directors.

The notice shall contain the following:

- The nature of the violation

- The time and place of the hearing, which shall not be less than ten (10) days from them giving you the notice

- an invitation to attend the hearing and produce any statement, evidence and witnesses on his/her behalf 

 

Before getting fines imposed or being summoned before the Covenants Committee or the Board of Directors, if you are going to challenge the violation, it is better to be proactive and request a hearing before the Covenants Committee.

 

All appeals to the Covenants Committee can be requested through the HOA Community Manager (see Contacting the HOA Management Company for his/her email address). Don't just throw away the violations. Ask for the appeal before amassing fines and fees.

 

If you do not have a positive outcome from your hearing before the Covenants Committee, you have the right to appeal directly to the Board of Directors. Sometimes the Covenants Committee is forced to rule based on what the Governing Documents backing the violation currently says. The Board of Directors has the authority to make changes to those documents (sometimes not immediately) and has the authority to postpone or waive the actions sited in the violation.

 

If you did not get a positive outcome fro the Covenants Committee or the Board of Directors, you do have additional options.

 

Article 18 of the Covenants covers Dispute Resolutions and Limits on Litigation. This is a step that really ramps up the dispute. As residents of an HOA, we promised to take several steps to remedy disputes other than filing lawsuits. Article 18 of the Covenants covers this process. Many claims are covered by this article which including the interpretation, application or enforcement of the Governing Documents. 

 

Section 18.2 covers the Dispute Resolution Procedure:

(a) Notice:

  (i)  The nature of the claim, including the persons involved and the respondants role in the claim;

  (ii)  The legal basis of the claim (ie: the specific authority out of which the claim arises);

  (iii) The claimants proposed resolution or remedy, and;

  (iv) The claimants desire to meet with the respondant to discuss, in good faith, ways to resolve the claim

(b) Negotiation:

The claimant and respondant shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the notice, the Board may appoint a representative to assist the parties in negotiating a resolution of the claim.

(c) Mediation:

If the parties have not resolved the claim through negotiations within thirty (30) days of the date of the notice (or within such other agreed upon period), the claimant shall have thirty (30) additional days to submit the claim to mediation with an entity designated by the PCA (if the PCA is not party to the claim) or an independant agency providing dispute resolution services in Dorchester County and/or Charleston County , South Carolina area (the "Mediator"). Each bound party shall present the Mediator with a written summary of the claim.

Under mediation, there is a thirty (30) day time limit, or such time as determined reasonable by the mediator, to resolve the dispute. Failure to resolve through the mediator will result in the mediator issuing a notice of termination of the mediation proceedings indicating that the parties are at an impasse.

The claimant shall be entitled to file a lawsuit or to initiate an administrative procedure.

Each party shall be responsible for its own costs of mediation including attorney fees, and each party shall pay an equal share of the mediators fees.

 

There is another action you can contemplate.  

A 2018 change to state law (S.C. Code Ann. § 27-30-340) requires the South Carolina Department of Consumer Affairs (SCDCA) to collect certain data from complaints involving homeowners associations (HOA). Information collected is to be reported to the Governor, General Assembly and the public by January 31st each year. (Additional information at https://consumer.sc.gov/HOA-reports). The SCDCA has a website page dedicated to educating HOA members at https://consumer.sc.gov/HOA-Ed

 

The SCDCA takes complaints and sends notices to HOA management company in an attempt to get them to address the issues. They do not act as a mediator or with any legal enforcement. The threat of publicity sometimes brings resolutions to problems faster than other forms of mediation. Plus, since your complaint goes on the record, it is possible that it may be spur or be used for legal actions taken by the State of South Carolina or Dorchester County if the pattern of complaints points to legal issues.

 

The SCDCA also can help HOA residents find legal assistance through their referral service.

 

Your rights as a howmeowner in an HOA controlled community

Website Created & Hosted with Website.com Website Builder