Can someone be compelled to prove they are complying with a contract? (If contract doesn't stipulate such proving)

Question

I serve on an HOA board, and a fellow board-member believes we can compel someone to prove they're not violating a rule, and punish them if they are violating it OR IF THEY REFUSE TO PROVE they aren't.

The rule in this example is "no inoperable vehicle in the driveway". We haven't seen the car move. But we don't have 24x7 surveillance on that driveway either. Even if it's not moving, that doesn't mean it's not capable of moving (inoperABLE).

Fellow board-member believes it's inoperable and wants to give 7 days to move it.

Our bylaws never stated a 7 days limit, nor do they have any language requiring homeowners to testify against themselves or provide evidence to their defense.

Fellow board-member's argument is that it's inherent to any contract that both parties have to prove they're in compliance. I don't know where she got that, and she refuses to cite any sources. The state is Kansas, USA if that is relevant.

I'm not looking for advice on the car. I'm asking about the broader legal argument of having to defend one's self. Is not the burden of proving the violation on the accuser?

I feel it is at the very least reckless to go accusing someone if we don't have any evidence of an actual violation.

I'd very much appreciate citation of sources in the answer that I can present at next board meeting to have a better informed discussion.

Answer 1

Can someone be compelled to prove they are complying with a contract?

In this context, yes, since its apparent breach is evident. The other answer rightly explains the notion of preponderance of evidence, which pertains to the procedural aspect. Here, I will mainly address the substantive standpoint as per the situation you describe.

The HOA rule most likely is intended to serve one or more purposes, such as preserving the prestige of the neighborhood, and to avoid safety hazards. The prolonged presence of an abandoned vehicle --just like any piece of junk--- tends to contravene those purposes.

Regardless of the vehicle's true state, the effect of its apparent abandonment is visibly detrimental to the neighborhood, and it frustrates the ultimate purposes of the HOA rule: to preserve safety conditions in the neighborhood as well as the value of the properties.

Also, the presumption that an abandoned vehicle is inoperable seems reasonable. The most straight-forward way to disprove the board's allegations of inoperability is to actually move the vehicle at least once in a while. Accordingly, the owner's inexplicable reluctance to take that simple step reinforces the supported suspicion that the vehicle is indeed inoperable, and thus in breach of the HOA rule.

Answer 2

No, he does not HAVE to prove it. Period. I would just point out that the only way the homeowner would be in the position necessary to decide to prove it or not is if the HOA presented him with the claim that the car wasn't operable in the first place. I understand that you don't have evidence to prove the car is inoperable, but the only way to resolve the issue is to make the claim. Eventhough you were correct in your belief that he doesn't have to defend himself, in order for the HOA to resolve the issue it has to bring attention to the issue.

Answer 3

You need to start with the premise that you can punish a person: you can't (setting aside partental punishments). You could sue the member in court. As a civil matter, the elements would have to be proven by a preponderance of evidence. So there has to be some evidence that there is such a clause and that it binds the member, and some evidence that the vehicle is inoperable. For example, has not been seen operating in many months. That isn't absolute proof, but it is evidence. The court will weight all of the evidence. If there is counter-evidence in the form of a date-stamped video showing the vehicle operating, the preponderance of evidence would show that the member has not violated the contract.

Whatever they have in mind as a sanction against the owner, it technically isn't a punishment, it is probably liquidated damages, for example $100 ($1000?) for breach of that clause. This has to do with setting a fixed and reasonable estimate of the cost of remedying the breach (mostly, having a judge say "You have to fix it, or tow it", which when you add attorney's fees, is not cheap).

In a criminal case (in the US), on the other hand, the state has to shoulder the burden of proving guilt, and the defendant does not have to prove that they are innocent.

Answer 4

Relying on generally applicable contract principles, my analysis indicates that the homeowner has no obligation to respond to an HOA demand that he demonstrate his compliance.

There's a provision allowing something like what you're talking about in Section 2-609 of the Uniform Commercial Code:

A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.

But Article 2 only covers contracts for the sale of movable goods, meaning it doesn't apply here. And even if it did, all it requires is that the other party provide a written assurance that they will not breach; it doesn't require him to provide proof.

Under standard contract law principles, there is also the concept of anticipatory repudiation, which "permits a party to bring suit for breach of contract in advance of the time the contract calls for the other party to perform, if the other party has repudiated the contract." First Nat. Bancshares of Beloit, Inc. v. Geisel, 853 F. Supp. 1337, 1342 (D. Kan. 1994).

But again, it doesn't sound like the member has repudiated. At this point, there's just speculation -- with some evidence -- that he is already in breach, though probably not in substantial breach.

I don't know of any other contract principles that would allow the HOA to impose this requirement on one of its members. That said, the failure to move the car is probably sufficient basis to just move straight to litigation, alleging a breach. There's a non-zero chance that you could convince a jury that failing to move the car proves that the car is inoperable. The burden of proof would be entirely on the HOA, so the homeowner could theoretically do next to nothing and just argue at the end of trial that you haven't proven your case.

Of course, the case would probably never get that far. And your judge would hate you for bringing the case. But you might win.

Disclaimer: A reliable answer would require a more detailed analysis of Kansas law, local laws, the HOA's bylaws, relevant CC&Rs, and any actual contract with the homeowner.

Answer 5

The 5th Amendment doesn't work here

The crux of the problem is that this is a civil matter, not a criminal matter. Any 5th Amendment limits on self-incrimination don't exist in the civil world.

(except in the fringe situation where answering a civil inquiry will result in admission of a crime).

They are not compelled to answer...

The HOA is a contract that you agree to when you move into the development. Does the HOA have a right to bar inoperative vehicles? Definitely.

Do they have a right to enforce that using reasonable means? Absolutely, and a good measure of "reasonable and sensible" is what the neighboring towns do (that is non-controversial obviously) to detect non-moving vehicles. Unlike a city they can't just up-and-tow a vehicle from a private drive (unless the HOA agreement says they can).

So far, nothing compels a member to cooperate.

A civil lawsuit will have that effect. Filing a suit with no evidence would be harassment: they must be able to present a "preponderance of evidence" that would lead a reasonable person to conclude that more likely than not, the car is inoperative.

... Until you file a lawsuit.

Once the case is filed, yes, absolutely, they can use discovery to compel the member to disclose the state of the vehicle. Myself, I would use the interrogatory type: written questions they must answer in writing. Because it works well during COVID, but more importantly you're allowed unlimited interrogatories, so you can research their claims and follow up: many courts only allow one sit-down deposition. Also, both the questions and the answers are crafted carefully with oversight of counsel, so they have more weight. They still are answered under penalty of perjury.

The questions must be reasonable, and on-point to the core issues. The member may file an objection with the court to any question and the court will rule on that.

Answer 6

TLDR: Yes, but not right now.

The case, on its merits

Is the HOA entitled to have a rule against inoperable vehicles in plain view? You bet it is. That's legit.

Does the HOA get to use reasonable, prudent and lawful methods to enforce that rule? Yes. The fact that the contract specifies no enforcement mechanism does not leave the HOA weaponless. The HOA certainly has a right to send a letter to that member - or all members - reminding them of the "no inoperative cars in plain view" rule.

The HOA can be a jerk about it, but so can the homeowner right back. This can very quickly turn into a "pissing contest" (is what they call it around here), where the homeowner responds with equal passive-aggression, CC's the letter to every other member, gets the TV news out there, puts political signage on the property (good luck getting that suppressed), and spoils the re-election chances of that board member and maybe others.

Remember, members in a society (e.g. HOA) have an absolute right to communicate with each other about the affairs of the society. Under the stress of a bitter fight, some boards think it's OK to regulate or impede that free communication. That is a strategic blunder that members can use to their advantage in all sorts of ways.

The HOA also has a right to engage in prudent and ordinary surveillence of the vehicle to ascertain compliance with that rule. Generally what the town does to detect the same thing - reading odometers through the windshield, marking a tire tread with chalk - is probably legit. I also point out the HOA is probably inside a city or township, and that may have laws pertaining to inoperative vehicles. The HOA does not override city law; that applies too. The HOA is within its rights to third-party the problem to the city, report the matter to the police, and let them deal with it.

That has the nice feature of involving a neutral third-party; so it isn't a tawdry Captain Ahab/Javert crusade of one HOA board member against some hated rival.

I suspect the police would immediately apply the tolling mentioned earlier, and say "We're not doing enforcement on non-moving vehicles, because parking your vehicle for 2 months is perfectly reasonable under shelter-in-place orders or advice for many vulnerable parties. People have enough problems right now."

HOA proceeding on its own

However, if the HOA decides to proceed on its own, they do indeed get to send the letter. This would almost certainly result in the car being moved from that spot to the next spot over, or reversed in the spot, or swapped with a car currently in the garage. This prima facie evidence of operability must end the inquiry.

If that does not happen, then the HOA should probably send a couple more letters as a CYA measure (just so the defendant can't raise a defense that "they were never made aware"). Then they would file a civil tort: breach of contract (again under normal circumstances; this isn't going to happen now). The defendant will consult a lawyer, who will say "just move the flippin car" to provide the above prima-facie evidence, at which point the HOA is obliged to drop the suit.

If the defendant is that stubborn (the lawyer may threaten to quit at that point), then the HOA will begin "discovery" or fact-finding. They will ask the defendant directly if the car runs, and the defendant is compelled to answer truthfully. (but doesn't the defendant have the right not to self-incriminate? No, that only applies to criminal charges.)

At some point, the defendant will realize "the jig is up" and deal with the car.

If pushed all the way to the end, the defendant will have to sit in the witness stand and answer questions in front of judge, counsel, jury (if opted) and spectators. The judge will say "Yeah, you have to answer that". And there will be a judge's order to move the car.

If the defendant loses utterly, and has no leg to stand on, the the HOA might ask for legal fees. But the award may fall far short of actual costs. And the defendant may not pay (the HOA can always attach the house with a lien, but that only cashes out when the owner sells. This can put the HOA dangerously cash-short.)

Then, the other shoe drops. The HOA has to raise fees by $200 to pay for the hole in the budget. Now that's being flipped against the HOA board: "those members bankrupted the HOA with cockamamie legal adventurism!" And every member has the $200 bill to remind them. So yeah, that board does not get reelected!

This won't even get docketed anytime soon

First, right now, that case isn't going anywhere.

I like to jump straight to the endgame and see what's going to happen if this gets in front of a judge. It won't.

Your state's shelter-in-place order just ended, but municipalities are at discretion to emplace their own, and in particular, individuals especially vulnerable people have every right to self-impose one. In fact, many people are being asked/advised to self-quarantine. This thing is not over.

Meanwhile, court activity has been greatly reduced, which means courts have a significant backlog of normal cases. And on top of that, they have armies of people a) suing each other over coronavirus itself. And on top of that, they have people suing each other over issues of contract performance that were realistically impacted by Coronavirus. Which your case falls into the category of; since Coronavirus all by itself constitutes a reasonable reason for them to not move their vehicle for an extended period.

Even more than that, look at your governor's emergency orders and/or legislation done for this purpose. Many states are tolling timing requirements, meaning whatever time limits are in place, the clock stops on those until the end of the emergency, which is still "on" in Kansas. Even if there was a rule of "move your car every 7 days", the rule is now 7 days past the end of the emergency typically.

In other words, the council member is being a huge jackass for choosing this particular segment of time to observe the car not having been moved. And is quite wrong to infer that therefore the car has broken down. Any judge will immediately recognize that!

Anyway, as said, court clerks are overwhelmed with cases. Court capacity is still diminished. So the courts will be slow to docket cases that a) as said, appear to be swayed heavily by Coronavirus, b) which appear to be related to timing issues affected by tolling, and c) which will probably sort themselves out by the time the thing realistically would get to court.

This case dings all those, so it's not going to get a slot on the docket. Period. If they even accept the filing, it will be deferred and deferred. And even if they got to the bench, parties will just get a lecture to sort it out.