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.

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    Is there really no language outlining how to serve the owner with a notice of violation, allowing them to correct the violation, having a hearing before the board, etc. in your bylaws? I would think that that sort of thing would be CC&R 101. May 18 '20 at 21:30
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    Then I guess I'm confused. If there are such procedures, why is there a question about what to do? Are you concerned that the self-incrimination principle could supersede the provisions in the bylaws? May 18 '20 at 21:32
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    If you don't consider no-one having seen the car move over some period as evidence, what would you consider evidence? May 18 '20 at 23:20
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    Draw a chalk line on a tire. If it moves the line will be gone.
    – Joshua
    May 19 '20 at 4:33
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    The car's non-movement isn't great evidence of the car's inoperability. We're in the middle of a pandemic when tons of people are working from home. There are probably quite a lot of perfectly operable cars that suddenly going unused for quite a long time.
    – bdb484
    May 19 '20 at 5:25

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.

  • 3
    Maybe this news has not reached your part of the world, but much of the world is under shelter-in-place orders right now. You're forbidden from moving your car except for reasons necessary to life! I was in a complex where probably 3/4 of the cars had not moved for 2 months, since needs were provided for by the complex. May 19 '20 at 5:42
  • @Harper-ReinstateMonica "Maybe this news has not reached your part of the world, but". Maybe you don't know this, but the minutiae of lockdown measures are not exactly the same all over the world. Therefore, it is unreasonable for you to expect us to know the minutiae that applies to your part of the world. Also, maybe you don't understand this, but the question as formulated by the OP is of much wider interest and applicability than just to scenarios of pandemic. You should have at least noticed that the OP consciously chose the tag "contract-law" and made no reference to COVID-19 at all. May 19 '20 at 10:00
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    re: "In this context, yes, since its apparent breach is evident." Is non-compliance evident? I have a car (in reality... not hypothetically) which I only drive once every few months. Is it evident to anyone that this car of mine is functioning at any one time? Even I don't know that. I once didn't realize this car's battery was dead for 2 months until I tried to start it.
    – grovkin
    May 19 '20 at 11:56
  • @grovkin I agree, but there is a difference between an owner's diligence to address the issue, and a decision to disregard inquiries from the board. It is reasonable to presume that the HOA board would inquire with the owner before seriously considering the hassle of bringing court proceedings. The OP does not specify whether the HOA board intends to take that preliminary step of inquiring, but the focus of the OP's question is other: the defendant's burden to prove (or, impliedly, outweigh) his compliance with a rule to which he is subject. May 19 '20 at 12:05
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    @Harper-ReinstateMonica - I was intrigued enough to do a search on this. Lots of hits on not driving anywhere, but I was unable to find any legislation against starting the engine and moving forward/back by a foot or so (which would demonstrate operability in this case). Can you point me at a source? May 21 '20 at 12:27

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.

  • I'm not downvoting your answer, but the fact that the OP speaks in terms of "accuser" and "broader legal argument" implies a scenario of the HOA board actually filing a claim in court. Accordingly, what you indicate is "the only way the homeowner would be in the position necessary to decide to prove it or not" matches what the OP was referring to. Hence why the emphatic denial with which you begin your answer is misleading or at odds with the major portion the answer. May 19 '20 at 10:13
  • @Iñaki Viggers you are being generous. The most straight-forward reading of the OP is to view it as a question about whether HOA board has the authority to make up procedures to enforce its rules after the fact that HOA becomes aware of a reason to suspect that the rules have been broken.
    – grovkin
    May 19 '20 at 12:13
  • @grovkin The reading you propose is hardly straight-forward. The OP's mention of lack of a deadline in HOA bylaws seems clarificatory, yet far from central to his explicit question on who has the burden of proof. Also the author who first posted an answer mentions preponderance of evidence, attorney fees, and other concepts inherent to court proceedings. Even if one adopts your interpretation, this would reduce to the futile issue of whether the HOA board is allowed to instate some sort preamble or dispute resolution method by which the owner is given an opportunity to obviate a suit. May 19 '20 at 13:33
  • @Kate Point taken, although such uncooperative approach by the homeowner can backfire if the HOA board files suit upon the inquiry. That is because the OP's inexplicable disregard of the opportunity [offered by the board] to obviate court proceedings may be found vexatious, thereby warranting an award of attorney fees. May 19 '20 at 13:56
  • @Iñaki Viggers futile indeed. The question's spirit is that what's happening doesn't sit well with the person asking it. And it seems to me that this is an attempt to assert an authority which HOA does not, in fact, have. The OP just can't quite phrase correctly why it doesn't sit well with him, but the circumstances, which he describes, seem to point in that direction.
    – grovkin
    May 19 '20 at 14:37

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.

  • Can you, please, clarify the 1st sentence. Also, "partental"? Is that a typo?
    – grovkin
    May 18 '20 at 21:24
  • So it comes down to preponderance of evidence because its civil not criminal. And iirc, in a civil case, a defandant who remains silent, looses. Really? That sucks. I guess in this case, we need to decide, why we believe it's inoperable, and how we would articulate that as evidence as such in a lawsuit. Right?
    – Billy C.
    May 18 '20 at 21:29
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    This is incorrect, at least in the US. Laws regarding HOA vary across the states, but I think all of them allow HOA to charge reasonable fines for violations of the rules or covenants of the HOA. In Washington state this is covered by RCW 64.34.304(k). The process for assessing fines is laid out in the bylaws adopted by the HOA. May 18 '20 at 23:05
  • @CharlesEGrant from my reading of the OP question, it seems to suggest that the bylaws have a prohibition without specifying any procedure to demonstrate compliance or any penalties for non-compliance. The OP seems to suggest that the HOA is making up rules on the fly and that someone on the board suggested that the mere existence of a prohibition allows them to do this.
    – grovkin
    May 19 '20 at 11:53
  • @grovkin and if fact it probably does. I'm really only familiar with Washington HOA law, but I think this part of law is generally similar across states. In Washington, the law only states that the schedule of fines has to be established, and be reasonable, and that there must be notice, and a process for appearing before the board to contest the fine. I think the law grants wide leeway to the board in terms of procedure and standards of evidence. May 19 '20 at 16:55

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.


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.


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.

  • This answer is very speculative and makes several wildly inaccurate statements. A court clerk will not reject filings simply because these relate to coronavirus or because he speculates the disputes "will probably sort themselves out".Your assumption that the board would be "obliged to drop the suit" mistakenly discards the possibility that the board might seek injunctive relief to prevent a re-occurrence of defendant's violation. Your assumption that defense counsel "may well quit" due to client's stubbornness ignores that many lawyers milk their clients for as long as it is profitable. May 19 '20 at 22:09
  • @IñakiViggers I'll let you have the clerk/reject issue, but I would remind you clerks work for judges, and judges will sit down with staff and figure out how to shed load at times like these. Injunctive relief might be called for if the violation were pervasive/repeated, but OP does not indicate that, so bringing it up would seem ... speculative. As for "milking clients", now who's speculating and making wild statements? ;) May 20 '20 at 0:32
  • To think further on the "must drop the suit" issue, pursuing injunctive relief for a one-time solved problem looks, walks and quacks like legal bullying/harassment even without COVID. That'll get you sanctioned in California. And if I say "the car works, I drive it to church every Sunday", you look completely insane. I can leverage that into costs. I probably won't get vexatious litigant, but I'll sure ask. May 20 '20 at 1:05
  • "As for "milking clients", now who's speculating and making wild statements?" That is the unfortunate reality of the legal "profession". Watch this. Any allegation in the sense that those are "isolated" cases is naive. "I'll let you have the clerk/reject issue, but I would remind you clerks work for judges". That statement of yours is not an argument of how the law is, and in any case it is at odds with your inaccuracy that docketing of cases depends on the clerk's discretion as to which disputes "will probably sort themselves out". May 20 '20 at 10:13
  • @IñakiViggers Surely you must see where your thing about lawyers overcharging is a bolt-out-of-the-blue, seems like a rant, and has nothing to do with this Q&A. We've both paid lawyers but I've had different experience I guess. I've overseen about $100k of lawyer expense in the last 10 years, half of that out of my pocket. I've had disagreements on billing, but we haggled and it was settled mostly in my favor. If you have a question about lawyer overcharging, ask a question, and we can have a Q&A there. May 20 '20 at 18:43

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