Self Management Guide: Violations or Covenant Enforcement

violations-covenant-enforcementOver half of the community associations (HOAs, Condos, Townhomes, Mobile-Modular, Co-ops) throughout the United States are self-managed. Furthermore, that number is rising. Geographical areas experiencing extensive foreclosures often must choose between paying a monthly management fee or and street lighting. Here we offer time-tested suggestions and the best management practices of our industry.
Before reading on, your community’s success with self-management requires your understanding that:
  •  Your authority and responsibility as a director and administrator is defined by your community’s documents: the declaration of condominium, CCRs, Bylaws, etc. In addition, your state’s statute may call for further restrictions or requirements.
  •  Volunteers be assigned to key positions and that each position clearly defines that volunteer’s tasks, responsibility, and the scope of their authority.
  •  Each member of the board and committees understand their responsibilities and duties with respect to their community documents and state statute.
  •  Consistency and accountability are vital to establish credible leadership and enforceability.
Before you begin…
Success requires plans, systems, and policies in place. In the last blog article, we considered collections. We began with a sentence in the documents that provided the board with the authority to collect. From there, we reflected on a sampling of three collection policies that a board might adopt. Once adopted by the board at a properly called meeting, prudence requires sharing that policy with the members prior to the commencement of enforcement.
In this article, we will look at the components that lead to the successful enforcement of rules.
Violation or Covenant Enforcement: 
The very term enforcement causes a reaction. Some owners will nod their heads approvingly and think…it’s about time! Others will shake their fists and think…no one is going to tell me what to do with my home and property! In that enforcement typically divides the Hatfield’s from the McCoy’s, it is best to broach the topic gingerly.
Before a board can attempt enforcement, understanding the enforcement policy is required of the owners and members of the board.
With respect to historic enforcement, your association will fit one of the following scenarios.
  1. Only the worse violators are sent violation notices
  2. Violation letters are sent when the board notices or is informed of a violation
  3. Violation letters occur from community inspections, but inspections are inconsistent or haphazard, as is escalation of the offense for noncompliance.
  4. Owners expect uniform enforcement. Performance of inspections is timely and consistent. Escalation and legal action is the consequence of noncompliance.
Congratulations to those communities that fall under 4. This Board has it together. Your tangible reward is compliance. Furthermore, you have earned the owners’ respect; they can count on you for fairness and follow through.
The remainder of this article will help you get to where you need to be. The starting point for enforcement commences with an understanding of:
  •  What defines well constructed rules
  •  Which rules are unenforceable
  •  Adopting only rules that the board will enforce
These three concepts are like the corners of a triangle – they blend and are difficult to separate in discussion. However, we must start somewhere, so….
What Defines Unenforceable Rules
Rules are unenforceable for three reasons.
  1. The rule is in conflict with state statute
    Many years ago when the earth was young, board members could sit on a fining committee. A law passed that forbid board members or their spouses to serve on this committee. The association had the authority to prevent the use of outdoor clotheslines and control over the placement of satellite dishes. Changes in statute, removed the authority granted to these boards by their governing documents.
  2. The rule is more restrictive than that which is set forth in the governing documents
    The premise behind this principle is that an interpretation of the documents that limits owners’ rights is unenforceable. In addition, a rule or clarification of a rule that takes away owners rights is unenforceable.If the documents allow owners to have two pets without qualification, then the board may not place restrictions on that owner as to the type or weight of those pets. This means that mastiffs, pit bulls, pythons, and pot-bellied pigs qualify as residents in your community. Any attempt to limit the type of pet or ones weight takes rights from the owners and is not enforceable. The way around this is to change the documents utilizing the process set forth in them. Until then, the good news in this example is that owners are limited to two pets and the ousting of these pets is permissible if they violate the nuisance provision of the documents.

    Similar situations often apply to landscaping in homeowner associations. If the documents state that one’s yard must have grass, the association may suggest or recommend, but not designate the type of turf.

  3. The rule has been ignored for long enough to cause owners hardships if enforcement were to occur after the fact.
    One of the more common examples of these deals with sheds. Often docs require that sheds may not be visible from the street or adjoining homes. Sheds pop up everywhere when this provision is not enforced. If the enforcement of this rule called for owners to remove their sheds, the courts would likely view this after the fact enforcement as an unreasonable burden. A rule allowing for a grandfather provision is a topic for antoher day.Likewise, in a condominium with no pet rules, it is common to see associations overlooking cat ownership. The after the fact enforcement of this rule when the association knowingly overlooked the cats presence over time, would place an unreasonable burden on the owners.
Adopting Only Rules That the Board Will Enforce
The association can establish rules two ways. First, they can enhance or clarify existing rules. As mentioned, this is acceptable if it does not restrict owners’ rights. Association’s can also make rules by making changes to their association documents by following the legal process set forth therein.
Therefore, If the association with proper authority, is considering the creation or modification of any rule, it should not adopt that rule unless the association is willing to enforce it completely.  By this I mean, taking it to association counsel, if all previous attempts at enforcement fail. If the association is not willing to do this, do not make the rule.
There is nothing that gripes owners more than the creation of rules that will not be enforced. Furthermore, when rules are not enforced, the owners’ perception of the board leadership is perceived as weak and ineffective.
Instead of adopting a rule that will not be enforced, consider adding suggestions that accompany your association’s rules.  Suggestions will influence some owners, but not all.
The removal of mildew from shingled roofs in an HOA is a good example. The documents typically call for home maintenance and cleanliness, but seldom define whether that pertains to the shingles or tiles on a roof.  Unless there is state law to the contrary, it is within the scope of the board’s rule making authority to require that roofs be treated for stains, dirt, and mildew.  However…, historically, the cleaning of roofs is controversial and boards often back down when they get resistence.  So…if you are not going to enforce a rule, do not make it.
In many communities, we send informational letters to homes with soiled and stained roofs. The letters offer best practices for cleaning along with some of the positive benefits for doing so. We also provide reputable vendors that will do the job without damaging the roof.