HOA Law Blog
By David C. Swedelson, Partner, SwedelsonGottlieb This article was prepared for a recent program that David spoke at dealing with rule enforcement.
There is no disputing the fact that serving on the board at any community association is time consuming and can often become frustrating. You have a multitude of issues competing for your attention – whether it’s adopting the budget, monitoring performance and renewing service contracts, insurance renewals, supervision/hiring and retention of employees or collecting delinquent assessments. In addition to running the association’s business, board members are also faced with the task of enforcing rules and regulations.
Unfortunately, many owners fail to understand how important it is to follow the rules (these are the same people that run red lights) and develop a we vs. the board type attitude. Some of these rule violators take the position that there is not much that can be done by the board to enforce the rules. Or they may say that the board cannot tell them what they can or cannot do in their home.
Rules and Regulations set forth the standard of conduct expected of the owners and residents at a community association. Rule enforcement maintains order, preserves the aesthetic quality and architectural integrity of the development, and enhances community living. Many people buy a condominium or a home in a planned development because they like the way the common area looks, the fact that the parking garage isn’t full of owners’ junk, the homes are well maintained, there are no boats or recreational vehicles parked on the streets, people aren’t blasting their radios late at night and visitors have to register at the entrance gate. However, some owners become annoyed or downright argumentative when the board tells them to mow their lawn, turn down the radio at night, discontinue parking their trailer on the common area street or to remove their dog when it weighs more then permitted in the CC&Rs.
Rule violations bring on additional complaints from the owners that do follow them. Then the board hears comments such as “why haven’t you done anything” or “when are you going to stop so-and-so from x, y or z”. Some boards don’t deal with enforcement and give up after writing letters and issuing warnings, thinking they cannot enforce the rules effectively, or they do not want to be yelled at by aggressive violators. However, this does not have to be your scenario. With careful planning, careful rule making and a policy of consistent enforcement, owners can be compelled to comply with rules and, in many cases, must pay reasonable attorney’s fees and costs if their association is forced to take legal action. Here are some tips:
1. Make sure that the rules are properly adopted in compliance with the Civil Code and that the rules are reasonable. What does this mean? It means that the Civil Code requires, among other things, that the board send operating rules to the owners for 30 days of review and comment before the board finalizes the adoption of the rules. And make sure that the rules are reasonable, that they serve a legitimate association purpose and are not arbitrary. How can you determine if a rule is reasonable? Follow this link for an article that we prepared that addresses this very issue.
2. Make sure that the owners have the rules, that they are required to provide the rules to their tenants, that the rules are simple and easy to understand and are not more restrictive than the CC&Rs.
3. Document the violation, and if the association has a consistent problem with rule violations, consider adopting an enforcement policy and a fine policy as well.
4. Notify the owner of the violation in writing (and tenant if applicable) and demand they cease and desist within a reasonable time and, should the violation continue, that legal action will be taken.
5. Make sure to cite the section of the CC&Rs or rule being violated.
6. If the violation does not cease within a reasonable period of time, have the association’s legal counsel issue a demand letter warning the owner (and tenant, if applicable), that formal legal action to obtain compliance with the governing documents and for an award of attorney’s fees and costs will be taken.
7. Serve on the owner a Request for Resolution (ADR Demand) as required by the Civil Code and mediate if possible, as most disputes can or should be resolved and mediation can help; or
8. If necessary, commence immediate legal action in court (after demand for pre-suit mediation if applicable) seeking an order requiring that the non-complying and/or offensive activity cease and an award of the association’s attorney’s fees and costs for bringing the action.
If your association’s rules are important, then the board should not be afraid to enforce those rules. Boards should consider implementing an enforcement policy, including a listing of fines for violations so that the owners know what to expect and how the board intends on enforcing the rules.
If the rules are no longer relevant to your association, change the rules. Community association rules are designed to change as a result of changes in the community. Some changes can be made at the board level (rules) while other changes require membership approval (CC&Rs).
David Swedelson is a community association legal expert. He can be contacted via email: dcs@sghoalaw.com