Real Estate Law
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Do the governing documents of the HOA provide that water may be shut off for nonpayment of dues? Do the dues include the water service so that there is no separate utility bill?
No, I don't believe the documents of the HOA specify that water may be shut off.
The dues do include water service.
I volunteered to ask this question for the board, as I was previously on the board.
I'm pretty certain that the only route is to specify liens, penalties and interest and then if the amount becomes large enough then pursue in small claims.
Generally, the governing documents would need to provide that shut off is a remedy for collection of dues before water may be shut off. Plus, even if the documents to allow such a remedy, courts in many jurisdictions are not willing to allow an HOA to enforce such a remedy in light of the fact that water is an essential service that essentially denies the homeowner of the ability to live in his/her property. While I am not aware of any Missouri statute or court decision that has determined it is not an available remedy in the case of past due assessments (in which case the HOA could do it if allowed by governing documents), please be aware that there is precedent in other states where courts have decided it is not allowable. Thus, unfortunately, there is no clear answer under MO law. In any event, if the HOA amended its governing documents so that it was an available remedy, it could shut off water to enforce collection until such time as the practice was successfully challenged in court. Generally, though (and especially if the documents don't allow it), then the available means of collection would be liens, penalties, interest, and foreclosure on the liens.
That was where I was stuck. I was aware of some of the cases in the other states where it wasn't allowed but could not find anything relating to Missouri, but agree that unless we haven't it written in the HOA articles (which we are currently re-writing) then we can't do that). Just wanted to confirm what I was finding so appreciate that. One more question since that was easy. Can we deny these people in arrears from certain common properties by filing trespassing charges (that is calling the sheriff?) I think it's a silly idea myself but I'm dealing with Hatfield and McCoys. The common area is waterfront property (privately owned, Ameren UE. (Lake of the Ozarks).
If it is in the governing documents, then access to common areas could be restricted to those non current on dues and fees so that they would be trespassing if they are not current.
Makes sense. I'll pass that along. I appreciate your time.
I haven't done this before but I'll send over an E and end the session now. Good luck.
Thanks. Please let me know if I can help with anything in the future.