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Hi I purchased a condominium in Salt Lake City, Utah 5 years…

Customer Question
Hi I purchased a condominium...
Hi
I purchased a condominium in Salt Lake City, Utah 5 years ago as an investment property and rented it out in accordance with covenants, conditions and restrictions of the Homeowner Association (HO) at the time of purchase. Now the new Board of Directors of HO is requiring only people who rent their units to sign a statement that they will have to check criminal background on their tenants and provide it to (HO). They are also asking landlord to include a clause in their lease that they will evict tenant within 10 days of the day tenant commits a criminal act or acts inappropriately (they did not define what this could be). I would personally evict my tenant if he commits criminal act as defined by state. However, it just seems that HO is affecting only people that are renting out their units. HO is not explaining how people who owns the property and live in the property would be affected. It appears to me that owners who live in their properties are not required to provide their own criminal background check. In addition, the HO is not requiring them to vacate or sell their property if they commit a criminal act. I am just wondering if the HO has such right to make new rules and require me to sign a statement that my tenant and I will obey by new rules. As I mentioned none of those rules were existing when I purchased the property. In addition, it seems that those rules are just requiring landlords to comply but not owners who resides in their unit. My issue is that my tenant next-door neighbor could be someone convicted of crime but since they own the property and reside in it they do not have to provide their criminal background check. This could also affect safty of my tenant. Also my second issue is that HO is trying to make it harder and harder for landlords to rent their properties. They are also requiring if a landlord sell the property that the landlord disclose those new rules to new owners (which makes it harder to sell). Please help. My tenant is a nice person and I do not have any issues, but I just do not feel the HO should at the end make me sell the property. I purchased this property as an investment to rent it (never lived there) and I liked the rules at the time of the purchase but now it seem every they get new Board of Directors , HO is trying to make changes. Also Board of Directors are people who own and reside in their properties and they do not like renters even though some of rental properties there are in much better shape than those where owners live in. In addition, at the time of the condo they knew that some f condos in this complex are being rented out. Please can you tell me what my rights are?
Thanks
Submitted: 6 years ago.Category: Landlord-Tenant
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Answered in 41 minutes by:
2/17/2012
Lawyer: socrateaser, Attorney replied 6 years ago
socrateaser
socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 39,986
Experience: Retired
Verified
Hello,

The phrase "commits a criminal act" is too vague to be enforceable. Commission of the act is not proved until the perpetrator is arrested, charged, tried and convicted. In order to terminate a lease based upon the mere commission of a criminal act would require that the landlord step into the shoes of law enforcement, judge and jury, and then resolve the tenant's criminal culpability before the government. This is an unconscionable rule, and it would be an unconscionable lease provision as well (unconscionableness is defined as shockingly unfair terms and conditions combined with overwhelming bargaining power in one of the contracting parties). Thus, in my view, the HOA's rule and your ability to enforce that rule under a tenant's lease is unconscionable, invalid and unenforceable in court.

As an example, suppose that the tenant gets a speeding ticket. Under the proposed HOA rule, you would be required to terminate the lease and evict the tenant, as soon as you discovered that the tenant was cited for speeding. This is clearly nonsensical, and no court would tolerate such grounds to terminate a lease.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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Customer reply replied 6 years ago
(“ToCustomerrdquo;),

So can you tell me, can I just refuse to sign then the "Crime Free Community Lease Adenndum" that HO is requiring me and my tenant to sign now. I get the fact that I won't be able to evict my tenat for speeding ticket. Court would not support that. However can I refuse to sign this lease addendum the HOA came up with. They are making it sound like I have too. I just need to know my rights. This was not in original CC&R at the time of purchase of my rental property. In addition, can they require me as the landlord to do the criminal background check on my tenants. I have a tenant that is living there for 5yrs and I am uncomforatble to ask him now. Never had issues with hi. However homeovner association is saying I have too provide them with the proof of criminal background check. I feel I will be disclosing too much info to them. Do I have right not to sign what they are asking me? They are saying this addendum takes presidence over my lease agreement, and they want me to sign.
Lawyer: socrateaser, Attorney replied 6 years ago
The case law in this area is worse than thin. There aren't but maybe 2-3 cases like this that have reached an appellate court in the entire USA. The case law suggests that an HOA board can make reasonable rules concerning the leasing of homeowner units. The question for the court, which is what I tried to explain, is "what is a reasonable rule?"

The botXXXXX XXXXXne for your purposes, is that if you refuse to sign the agreement, then your association may fine you if you attempt to rent the unit. Which means that you will have to sue the association for a decree of your rights and an injunction against the continued enforcement of the rule. Put another way, while the HOA can force your hand onto the paper, so as to sign the agreement, the HOA could fine you, lien the property to collect the fine, and then commence foreclosure proceedings if you don't pay -- which would force you into a court to resolve the dispute.

Re the criminal background check requirement, I believe that a court would find that to be a reasonable rule. However, you cannot force your tenant to submit to such a check without entering into a new lease -- though you may be able to obtain sufficient info without the tenant's consent.

This is actually another area of ambiguity, i.e., there is no standardization re criminal background checks. Example: you can get one from beenverified.com, which is a relatively simple and inexpensive check -- and you can hire a private investigator to conduct a thorough security check for $1,000 or more. The association is not mandating anything in particular.

For example: you could provide the board with a receipt for a beenverified check, but no actual information concerning the tenant. This too, would not likely pass a court's "sniff test." The board needs a much more thorough rule, or a court will throw it all out.

But, as a practical matter, if you don't comply, then the board may start imposing sanctions against you and you will have to take them to court to straighten things out.

You may want to offer to enter into neutral mediation with a retired judge as a means of getting an objective opinion about what's likely to happen if this matter ends up in a court (and how much it will cost -- because I can see $10,000+ for each side easy to resolve this issue).

But, at the end of the day, you'll have to make the choice. If you sign, and comply, then you'll be left alone, until it's time to fight about it, in the event that the tenant actually violates this ambiguous rule. And, if you don't sign, then you may have to start fighting now.

I can't advocate a course of action here -- I "justanswer" questions about the law. You'll have to evaluate your benefits and risks and then decide which way to go.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser
socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 39,986
Experience: Retired
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Customer reply replied 6 years ago
Hi

One more question.I finally spoke with the HOA managment and I asked them what are new rules. They are telling me that resident of the unit (tenat)or any members of the resident household or guest or any other person under resident control shall not engage in a criminal activity, including drug related criminal activity, theft, graffity and destruction of private property.

Also resident and or his frinds, guest shall not engage in any act intended to fascilitate criminal activity on or adjacent to the community of the this propoerty. Furthermore resident will not permit the unit or community to be used for or fascilitate criminal activity, regardles if the member of the household is resident or guest of the resident.

In addition, the resident, or guest or other person under guest contro should not engage in any illegal activity (manufacturing,sale,distribution, use or possesion with intent to manufacture, sell distribute or use of a controlled substance)

The resident or guestl shall not engage in any illegal activity at any location, wheather inside outside or near the unit . Also, the resident any of his guest or people under his control shall not engage in any illegaal sctivity, including criminal street gang activity, threthening or intimidating, assult, graffiti, destruction of private property, including but not limited to the unlawfull discharge of fireams on the property.

My concern: When I asked the managment of the HOA who is to determine if the tenant or even his guest are violating any of the above provisions I was told that proof of violation shall not require criminal convictions but shall be by a preponderance of the evidence. So in legall terms what this preponderence of the evidence means? What if someone claims they feel intimidaqted by my tenat by way he looks at them. Can they just get two witnesses and ask me to start evicting process or do they have to have more proof than that.

Also in the case of dispute or questions who has the final word, does HOA has to hire a lawyer if I think they do not have enough proof or do I have to pay to defend my tenant. I do not have isues with some of the provision if there is the tenant is criminaly convict, but things like "intimidation", "assult", can be interpreted diffrently by diffrent people.

I am just afraid by this "preponderrence of evidence". The manager said that they left it at "preponderrence of evidence" that so that they can their own the units they want to get rid of tenats there and might interpret "intimidation" in many diffrent ways. Please let me know what the prepnderrence of evidence means.

Thanks
Sani
Lawyer: socrateaser, Attorney replied 6 years ago
The rule is no less vague than it was previously.

Preponderance of evidence means any quantum of proof greater than 50%. It's the same proof required in any civil action, such as a breach of contract, negligence or unlawful detainer/eviction case.

The problem is that there must be a judge or jury to deliver a verdict that proof by a preponderance of evidence exists -- moreover, there are actually two separate legal burdens that make up the burden of proof, i.e., the burden of production, which is the requirement that a plaintiff must produce sufficient quantity of evidence on each and every element of the claim to put the matter fairly before the trier of fact -- and the burden of persuasion, which is the requirement that the weight of the evidence be greater than 50/50.

On top of all that is the requirement that the evidence must satisfy the burdens for each and every element of a particular charge/claim, and that no affirmative defense be proved. And, each criminal charge has a different set of required elements and defenses. No homeowner could possibly be expected to know the elements of every possible criminal law applicable to Utah citizens.

The point is that without a trier of fact (judge, arbitrator, etc.), using a term like preponderance of evidence is utterly meaningless. Someone in your HOA seems to be trying to play government, and thus far, the only thing he/she is proving is that he/she ought to be disbarred!

My original answer is unchanged.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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Customer reply replied 6 years ago
So, I guess probably my tenant and I will have to sign what they are asking me to sing and deal with HOA only if an issue occurs. So my question is before I sign this document should I send the HOA managment an e-mail or something in writing so I that I have an evidence that I am telling them that I am involuntary signing this document due to the fines they told me they would have me pay if I do not sign it? Please note: the document they gave me to sign says they will charge me $500 fee per month if I am not evicting according to rules in lease addendum (which they want me to sign). There is nothing in this document that says they will charge me $500 fee if I do not sign this document but they verbaly told me that they will. They did state if they do not receive current lease that they will charge me $500.

In addition they, told me over the phone that I am not required to sign this document unless my lease is expiring and I am renewing it this year. So this is the thing, my lease is expiring end of March 2012, but my tenant and I signed a new lease agreement in December 2011.

We signed it early since my tenant is on a assistance and needed to make sure his papers were ready for his case manger. This whole thing with the "crime free community" is in effect January 1, 2012.

So I am just wondering, since I already signed a new agreement before January 2012 can they require me to sign this "crime free document" now? What would be the most safe thing for me to do? Should my tenant and I sign it, and me keep it in the case HOA ask me for, or should I not sign it until my new lease expires? The one I signed in December 2011 starts April 2012 and expires March 2014.
I want to protect my investment, but the thing that HOA is asking me to sign is so vague and to them "preponderence of evidence" is basically what they interpret is right or wrong.

They told me that they will have to come up with some evidence if there is an incident by my tenant but they are vague about what constitues evidence. When i asked them what I would have to do in the case that I disagreed wtith them, they told me I would have to hire a lawyer. I explained to them last Saturday that the document is vague and open for interpretation, but they told me if i have any questions to draft the questions for their lawyer, and he will try to answer them. The HOA manager told me that they are pretty much covered by law and can make me sign this document. Not sure how far I should go with them. Should i send them questions, etc?

Thank you so much, i really appreciate your help.

Sani
Lawyer: socrateaser, Attorney replied 6 years ago
UT Code 57-8-10(2)(d)(ii) requires: "If any use restrictions are to apply, the declaration shall state the purposes for which the units are intended and restricted as to use."

UT Code 57-8-8 provides: "Subject to reasonable compliance therewith by the manager and the management committee, each unit owner shall reasonably comply with the covenants, conditions, and restrictions as set forth in the declaration or in the deed to his unit, and with the bylaws and/or house rules and with the administrative rules and regulations drafted pursuant thereto, as either of the same may be lawfully amended from time to time...."

To me, the above requirements of the Code show that (1) restrictions on usage (including leasing) must be expressly provided for in the declaration of covenants, and if they are not, then the HOA board cannot create them by rule, without first amending the declaration of covenants; and (2) that an unreasonable rule does not require compliance.

Without reviewing the covenants, I can't really say more about where your rights stand -- however, I'm a bit of a fighter, and if it were me, and I found nothing in the covenants that expressly permits the HOA authority to control leasing of the units, then I would probably lean towards telling the board that I think their rule is unenforceable, and unreasonable, that I'm not signing anything, and if they want to try to enforce it, to go ahead and I'll see them in court.

However, I'm a lawyer, so I can say that sort of thing, knowing that if I have to fight, I don't have to hire a lawyer to represent myself.

You'll have to make your choice as to where to go with this. At this point, without reviewing the covenants, it's impossible for me to evaluate your chances of winning.

Telling the HOA that you're signing "involuntarily" is the equivalent of accepting the rule, so your idea here will get you nowhere.

The fact that you already have a new lease signed prior to the date of the rule means that there is no way it can be enforced against you with your current tenant, because you had no prior notice of the change. But, going forward, you will have to eventually decide whether or not to fight or concede the point in the interest of avoiding an expensive war.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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Customer reply replied 6 years ago
Thank you
Lawyer: socrateaser, Attorney replied 6 years ago
You're welcome and good luck.
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