Your community rules exist to protect residents, preserve property values, protect financial integrity and generally to make your community a great place to live. As an HOA or condo association board, it is your fiduciary responsibility to enforce your CC&Rs, bylaws and rules and regulations documents.
Consistent, accurate and legal enforcement of your governing documents is imperative for your community to thrive over the long term.
Here are some tips to make sure you and your fellow board members can faithfully execute your governing documents through consistent application of enforcement.
Don’t be Hypocritical
Before jumping into some of the details, there is one overarching theme to sink your teeth into. The rules of the community don’t just apply to residents; they also apply to the board and its activities.
If an HOA board violates its bylaws, say, by not recording meeting notes or failing to hold meetings on the correct dates, residents will notice and the board will lose credibility. A loss of trust and credibility will inevitably lead to diminished authority and resistance to the board’s attempts at enforcement.
Lawyer Nancy Polomis, as quoted by HOA Leader, stated the following regarding HOA board credibility issues: “I’ve seen owners get bent out of shape for seemingly minor board deviations from governing documents. I can say from personal experience that I've seen people in associations I represent retain counsel because the HOA wasn't meeting on the date set forth in the bylaws...Did the owner sue? No, but the association incurred attorneys' fees to address those issues."
"One overarching concern is that if the board can't hold the meeting on the day it's supposed to be held, what else is the board doing wrong? So trust becomes an issue. The trust level goes down, and the association ends up being on the defensive. The board ends up having to prove that not having its meeting on that day is an anomaly; it's doing everything else right.”
In short, practice what you preach, otherwise enforcement, which is challenging to begin with, will become exponentially more difficult.
Standard Enforcement Procedures
The community’s governing documents always include enforcement processes. Again, laying out what happens when and why when it comes to enforcement rules is critical to maintaining order.
Here are some standard enforcement processes and parameters to consider:
- Legal board meeting discussion before any enforcement action can be taken
- A violation notification must be sent to an owner
- Meeting bylaw notification requirements and methods
- The owner that receives a violation notice or notices must respond
- Allowing an owner that receives a violation 30 to 90 days (depends on governing documents) to remedy the violation before further action is taken
- The owner is given an opportunity to respond and negotiate with the board regarding the violation
Additional Enforcement Resources
As a reminder, enforcement rules and processes can vary from state-to-state and by governing documents. Below are some general resources of action for HOA boards after the initial enforcement phase described above, as described by NOLO:
- Fine any owner violating a covenant, rule, or regulation
- Enter an owner’s property to determine whether the owner is breaking any rules
- Enter an owner’s property to remedy a rule violation
- Suspend the rule-breaking owner’s right to use common areas, including the community pool, fitness center, and other areas
- Suspend the rule-breaking owner’s right to attend community events or functions
- Suspend the rule-breaking owner’s right to receive community news via email, letter, or phone call
- Sue an owner who violates any restriction, covenant, or rule
- Hold an owner responsible for any attorney fees or costs incurred by the association in enforcing a rule
- Place a lien on an owner’s property until the rule is followed or a decision is reached in legal court
Keep Your Owners Informed
Would it surprise you to know that most of your residents have not read the governing documents of your community? Probably not. There are likely a few sticklers out there that know every nuance of your bylaws and CC&Rs, but the vast majority of your owners do not have this level of knowledge.
Why is this important? Two reasons: (1) Many rule violations stem from lack of awareness (there’s nothing nefarious going on, an owner just didn’t know); (2) Boards need to be proactive and provide as many rule education opportunities as possible to elevate awareness of the governing documents.
Simply filing the governing documents isn’t enough. A consistent education campaign is required to keep owners up-to-speed. To do this, leverage:
- Your community newsletter
- Your website
- Social media platforms
- Snail mail
- Seminars and webinars
Finding regular touch points for rules education within other community publications is a useful investment of your time and can save you headaches down the road.
HOA-USA puts it this way: “Ultimately, an association's approach to covenant enforcement is critical. The association should ensure that it timely, consistently and uniformly enforces its documents, including the covenants and restrictions. Associations should understand the failure to timely, uniformly and consistently enforce the documents, subjects the association to defenses which could preclude enforcement, both with respect to the individual case at hand as well as future cases. As such, an association which postpones or allows deviations from the requirements of its documents is putting itself and its future enforcement actions in jeopardy.”
Consistent, fair and accurate enforcement that follows the governing documents and the law are essential to fulfilling the board’s fiduciary responsibility to do what’s best for the community at all times.
And yes, enforcement can become overwhelming and a burden, particularly at communities that are operating without the help of a community management company. Comsource can help you and your board navigate challenging situations like enforcement, as well as provide assistance across a wide range of homeowner or condo association management areas. Reach out to us today. We’d love to talk through some of your challenges.