Q: Are most legal matters encountered  by HOA's in the area of civil law as opposed to criminal law? What are the standards of proof in those two respective areas of law?

A: Yes, fortunately an association is more likely to find itself involved in a civil matter than a criminal matter. Civil matters involve issues like breach of contract, negligence, civil trespass, debts, property damage, and covenant enforcement. Since the "penalties" in criminal matters and civil matters are different, so are the standards of proof. The standard of proof in a criminal matter is "beyond a reasonable doubt." This means that the defendants is presumed innocent unless the evidence is so conclusive and complete that an ordinary person would not have a reasonable doubt as to guilt. Civil cases typically follow a lower standard of "preponderance of the evidence." The prevailing party in a civil case must convince the judge or jury that his evidence is more probable or convincing than the other party's.

Q: A home in our single family community has a separate apartment, with a separate entrance from the primary home. Is this use a breach of our "single-family" covenant and is it also a zoning violation? What should the association do?

A: The use of a home for two residences may not be allowed under the Declaration. Whether there is a violation depends on the provisions in the Declaration. If your Declaration is not clear, your association's attorney should be contacted to find out if the use is permitted or restricted under the declaration.

If the use is permitted, the association should still check local (City or County) land use ordinances. The declaration may be less restrictive than local ordinances. If local ordinances do not allow two residences at one home, the owners must comply with the local ordinance or obtain a variance from local government. If the association desires the owner to comply with local land use ordinances, the association should contact local government and request enforcement of its ordinances.

If the uses are not allowed under the declaration, then enforcement of the covenants should be considered by the board. Click here for our article about association enforcement options.