contract-law hoa self-incrimination
Can someone be compelled to prove they are complying with a contract? (If contract doesn&#39;t stipulate such proving)
<p>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.</p>

<p>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).</p>

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

<p>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.</p>

<p>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.</p>

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

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

<p>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.</p>

<blockquote>
  <p>Can someone be compelled to prove they are complying with a contract?</p>
</blockquote>

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

<p>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.</p>

<p>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.</p>

<p>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 <em>supported</em> suspicion that the vehicle is indeed inoperable, and thus in breach of the HOA rule.</p>

<p>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. </p>

<p>You need to start with the premise that you can punish a person: you can't (setting aside partental punishments). You <em>could</em> 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.</p>

<p>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).</p>

<p>In a <em>criminal</em> 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.</p>

<p>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.</p>

<p>There's a provision allowing something like what you're talking about in <a href="https://www.ksrevisor.org/statutes/chapters/ch84/084_002_0609.html" rel="nofollow noreferrer">Section 2-609</a> of the Uniform Commercial Code: </p>

<blockquote>
  <p>A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. <em>When reasonable grounds for insecurity arise with respect to the performance of either party</em> 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.</p>
</blockquote>

<p>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.</p>

<p>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." <a href="https://law.justia.com/cases/federal/district-courts/FSupp/853/1344/1517659/" rel="nofollow noreferrer"><em>First Nat. Bancshares of Beloit, Inc. v. Geisel</em>, 853 F. Supp. 1337, 1342 (D. Kan. 1994).</a></p>

<p>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.</p>

<p>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.</p>

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

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

<h2>The 5th Amendment doesn't work here</h2>

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

<p>(except in the fringe situation where answering a <em>civil</em> inquiry will result in admission of a <em>crime</em>).  </p>

<h2>They are not compelled to answer...</h2>

<p>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.</p>

<p>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 <strong>detect</strong> 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).  </p>

<p>So far, nothing compels a member to cooperate.  </p>

<p>A civil lawsuit will have that effect.  Filing a suit with no evidence would be harassment: they must be able to present a "<a href="https://en.wikipedia.org/wiki/Burden_of_proof_(law)#Preponderance_of_the_evidence" rel="nofollow noreferrer">preponderance of evidence</a>" that would lead a <em>reasonable person</em> to conclude that <em>more likely than not</em>, the car is inoperative. </p>

<h2>... Until you file a lawsuit.</h2>

<p>Once the case is filed, yes, absolutely, they can use <strong><a href="https://en.wikipedia.org/wiki/Discovery_(law)" rel="nofollow noreferrer">discovery</a></strong> to compel the member to disclose the state of the vehicle.  Myself, I would use the <em><a href="https://en.wikipedia.org/wiki/Interrogatories" rel="nofollow noreferrer">interrogatory</a></em> type: written questions they must answer in writing. Because it works well during COVID, but more importantly <em>you're allowed unlimited interrogatories, so you can research their claims and follow up</em>: 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. </p>

<p>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. </p>
