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REPEAT VIOLATIONS vs.
CONTINUING VIOLATIONS

Probation Analogy. I not only disagreed with your opinion regarding hearings and fines, I disagree even more with your definitions of repeat vs continuing violations. I have been advised by separate legal counsels over the years that if a member continues to violate the governing documents in a similar fashion, no matter how it’s done, fines can be assessed without a further hearing as long as the determination of future violations is made by the board at the hearing.

The law allows probation and I am a big fan of time-frames. If a member violates a restriction and has a hearing, then the board can rule that he/she must not violate for a time-period (6 months/18 months/etc.) without further fines. In the alternative, a board could say that if a time-frame expires, then a new violation occurs, which would require the due process to start again. Your too strict interpretation gets in the way of practical fairness. The spirit of the law is sometimes more important than the letter.  -Ed V.

COMMENT. I disagree. In the criminal justice system, those who violate probation still get a hearing before further penalties are levied. Simply being accused of violating probation is not sufficient to impose automatic penalties; a hearing must be held to prove that probation has actually been violated. Due process may be a hassle but it ensures fairness. -Adrian Adams

3-Strikes Rule. I agree with you that there is a difference between a repeat violation and a continuing one. Another example of a continuing violation is a front door that has been painted, without ARC approval, a color that is not acceptable by the ARC. The violation continues until the door is repainted or the ARC approves it in writing. I have my own personal “rule” regarding fines that I try to get boards and compliance committees to adopt. Don’t impose more that 3 fines for the same violation. Fines are imposed for a past bad behavior which violates the CC&Rs (as compared to some uncertain belief that a violation will continue into the future). A fine is also imposed to change the owners bad behavior into compliance. If three fines haven’t done the job, then fines are not going to work and the board must either stop wasting its time on enforcement attempts for this violation, or move on to injunctive relief. -Richard Neuland, Attorney at Law Neuland, Nordberg, Andrews & Whitney LLP

COMMENT. Mr. Neuland's "3-Strikes" rule is a good idea. Boards should not endlessly impose fines on repeat offenders. At some point, they must take legal action against habitual offenders. -Adrian Adams

EXECUTIVE SESSION MINUTES

QUESTION: We were advised not to put names or unit numbers in executive session minutes but to use APN or account numbers because of confidentiality issues if executive session minutes are accidentally lost or misplaced.

ANSWER: Boards can and probably should put names and unit numbers in executive session minutes. It provides a clear record of the board’s actions. Since executive minutes are not open to membership inspection, there are no issues of privacy or defamation. However, boards should take care to keep executive minutes separate from open meeting minutes so they are not accidentally distributed to members.

IT'S OKAY IF OLD PEOPLE DROWN

QUESTION: We closed our swimming pools until we can get them in compliance with the new Virginia Graham Baker Pool & Spa Safety Act. Some board members want to open the pools anyway with a stipulation that they can only be used by people over the age of 18. Your thoughts and comments on this please.

ANSWER: I'm amazed at how some people keep looking for ways to avoid compliance with the new law. If persons over the age of 18 drown because the pool violates Federal law, the association will get hit with the same lawsuits and fines.

  Very truly yours,
 
   Adrian Adams, Esq.
   Adams Kessler PLC