Should HOAs Evict? Or Amend Documents to Add Eviction Rights?

There are attorneys who recommend that boards add eviction rights in the CC&Rs by Amendment.  The problem I see is that if the Board has authority to evict a tenant, the owner of the unit is more likely to rely heavily on the board to resolve any problems with the tenants than to do it themselves.

 

Adding HOA eviction as an option fuels the mindset that the Board should step in, when it is really an owner problem.  Evictions are very messy proceedings and I believe it is more difficult for the Association, once removed from the contract between the landlord and tenant, to achieve the eviction. The Association is not the party that can revoke the tenant contract. To complicate things in this situation, often the trouble causer is not even a tenant, but rather a boyfriend or girlfriend or invited guest who just will not leave.

 

The Association has no direct legal relationship with a tenant or any non-owner until it creates one, and creating one exposes the Board to liability as a Landlord. Landlord/tenant law opens up the door to legal exposure for all kinds of liability including for discrimination, harassment, and other very serious charges which are often not covered in the Association’s insurance liability policies. These are very big risks.

 

Dealing with the problem tenant rather than the owner who is really responsible for placing and allowing the tenant to remain tends to be an exercise in futility. I can understand that pressure from neighbors leads Boards to want to take desperate measures; however, I don’t believe getting involved with directing, or evicting tenants or problem residents is the best way to go. I believe that pressure on the owner to do something is the best way to go.  Putting strong pressure to bear on the owner and considering possible disciplinary actions including fines, penalties, and even reimbursement assessments or legal costs the Association incurs are possibilities. Of course, it is important to check the authority of the HOA documents. If they do not have clarity on all of the rights of the Association to impose penalties on the owners, it’s time to consider proposing amendments to the membership for approval.

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