How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask barristerinky Your Own Question
barristerinky
barristerinky, Attorney
Category: Landlord-Tenant
Satisfied Customers: 38162
Experience:  Attorney over 16 years, landlord 26 years
19958803
Type Your Landlord-Tenant Question Here...
barristerinky is online now
A new question is answered every 9 seconds

Since July 1 2016, I am leasing a residential property in

Customer Question

Since July 1 2016, I am leasing a residential property in San Diego for me, my wife and 2 teenage sons.
The lease is executed with a property management company, whom represents the property owners.
Recently, I received via mail from the property manager a copy of a "Second Notice Of Violation" letter regarding a "parking violation" from the HOA, addressed to the property owners. Note that I never received a "first notice" or any other communication from the property managers regarding this matter.
And yesterday, I received via mail from the property manager a copy of "Violation Hearing Notice" letter from the HOA. This letter was again addressed to the property owners.I could not find any clause on the lease agreement that would prevent me using the garage for storage of personal goods.
Also, I am in full compliance with the lease agreement in that I am parking my 2 cars on the designated parking areas; 1 in the designated parking area in front of the house and 1 on the main road.And in my opinion, the only authority that can order me to disclose what I do or don't do in my garage is a California or US Federal court of law and not the HOA or the property managers.
But I am afraid that these HOA people will continue their harassment and I will end up paying these fines after I move out and the property managers will simply deduct the fines from my $3,275 deposit.Also, note that I am in the process of purchasing a 3rd car, now that my oldest son has received his driver's license.
Some additional background information:
The community is a gated community on a golf course with mainly elderly residents.
If completely cleaned out, the garage could barely fit 2 cars and from what I can see, several the other residents in this community only park 1 car in their garage.I attach the violation notices and the executed lease agreement FYR.
Note that no other "rules" have ever been given to me and none are posted in the area.
Also note that the property managers have been very irresponsive to maintenance requests I have submitted to them so far, they simply ignored them and I ended up performing the repairs myself.Considering that I do not want to go to the trouble and cost of renting a storage unit to store my personal goods or move out of the property and want to continue using my garage for storage of my personal goods, kindly advise what my options are.
Submitted: 9 months ago.
Category: Landlord-Tenant
Expert:  barristerinky replied 9 months ago.

Hello again and thank you for requesting me..

.

I hate to say it, but in your lease under section 2.10, it states that you will comply with all rules and regulations of the HOA regarding your tenancy.

.

So while the landlord was negligent in not providing you with a copy of the Bylaws and/or CCRs and Rules that govern the HOA, they would still apply to you once you signed the lease agreeing to be bound by them.

.

And the lease specifically states that you will be liable to reimburse the landlord for any fines that they incur due to violations.

.

The HOA is free to impose whatever rules it wants on its residents because when someone buys a home in the development, they agree to accept those rules and be bound by them. And under the lease, a tenant also agrees to be bound by them.

.

I think you are kind of stuck here and will have to clear out the garage and use it for parking only or they will continue to ding you with fines for the entire time you are there, which the landlord can then pursue you for...

.

I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

.

.

thanks

Barrister

Customer: replied 9 months ago.
In that case, I would like to move out and terminate the lease.
Kindly advise what I can do to terminate the lease and avoid the property managers to ding my credit-record or withhold my deposit. For example, can I use the fact that they never provided me the HOA rules to my advantage in any way? And what about the fact that they never responded to my requests for service?
Expert:  barristerinky replied 9 months ago.

You can notify the landlord that since they withheld material information that would have affected your decision to rent, that you are terminating the lease and moving under a breach of contract, misrepresentation and fraud claim.

.

Had you known that you couldn't use the garage for storage, you would never have rented the property and their failure to provide you with the rules of the HOA was a material misrepresentation that resulted in you entering into the lease under false pretences.

.

.

thanks

Barrister

Customer: replied 9 months ago.
Thanks for your reply.
But what I cannot fathom is how any organization can impose fines without evidence.
I am asking because in my opinion, the only way they could every prove without any doubt that I am using the garage for things other then parking my cars is if they installed a camera in my garage (since I never open the door of my garage).
Besides that, what recourse do I have to the fact that many residents here use at least half of their garage for storage. I noticed one such garage just this morning when I drove by as this resident drove one car our of this garage.
Am I guilty until proven innocent here?
And should I just take it lying down that I am being singled out, while others happily use at least half of their garage for storage?
Do I not have any rights?
Expert:  barristerinky replied 9 months ago.

But what I cannot fathom is how any organization can impose fines without evidence.
.

It happens every day when people sue each other... there is no evidence presented when someone files a lawsuit,...they just file it. They later have to prove their case in order to win. So they can make the allegation that you are storing things in the garage...maybe someone saw into the garage one day... maybe they are just assuming things... But regardless, they make the allegation and you have to refute it and prove they are wrong..

.

This isn't a criminal case where you are innocent until proven guilty...different court and different standard..

.

And as for other residents, you can report them to the HOA for their actions, but that doesn't excuse your own (if you are violating) or give you the right to do so. The "everyone else is doing it" defense doesn't work..

.

With that said, if you are the only one who has been cited and potentially penalized, and there are many other clear violations, if you report them and nothing happens, then you could defend and sue them for "selective enforcement", which is a discriminatory action. If the rules apply, they must apply to everyone equally.

.

.

thanks

Barrister

Customer: replied 9 months ago.
What method(s) can I use to force them to give me insight into their garage-use enforcement practices?
Once I have the evidence of selective enforcement, for how much can I sue them?
This evidence needs to go back how far in time in order to make a strong case?
Can I actually sue them despite the fact that I am not the one being penalized directly by the HOA, but indirectly: the HOA penalizes the home-owner, the home-owner inform the property managers and the property managers penalize me by withholding monies after I move out.
Or does that mean I can only sue the property managers after I move out?
Considering that the HOA is not penalizing me, but the homeowner instead, is there any advantage for me appearing at the Jan 18th hearing?
Expert:  barristerinky replied 9 months ago.

What method(s) can I use to force them to give me insight into their garage-use enforcement practices?
.

Request a copy of the Bylaws, CCRs and Rules from the landlord or Secretary of the HOA.

.

Once I have the evidence of selective enforcement, for how much can I sue them?
.

For as much as you feel you have been damaged.

.

This evidence needs to go back how far in time in order to make a strong case?
.

There is no set age, but the more unpenalized violations, the better for you..

.

Can I actually sue them despite the fact that I am not the one being penalized directly by the HOA, but indirectly

.

I think you can because you are being penalized directly by your landlord due to their actions based on your actions. So you would sue both your landlord and the HOA as defendants.

.

Considering that the HOA is not penalizing me, but the homeowner instead, is there any advantage for me appearing at the Jan 18th hearing?

.

Yes, because it would be up to you to dispute the allegation that you are using the garage for storage. The landlord likely has no idea what you are using the garage for, or that it was even a violation if you were doing so since most homeowners rarely read the Bylaws and CCRs and just wait to be notified about a violation, apologize, and then don't do it again.

.

So the best outcome here would be to go in, apologize for this since you were unaware that you couldn't use it for storage as your landlord never notified you of this, ask that the fine be waived, and then either store things elsewhere or use that as grounds to terminate the lease and vacate.

.

If I have addressed all your questions, I would very much appreciate a positive rating by clicking on the stars, smiley faces, or numbers on your screen as that is the only way I receive credit for my work.

.

.

Thanks much

Barrister