By: Ryan D. Poole, Esq. – Smith Knowles, PC
Community associations are typically obligated to ensure compliance with the governing documents and to take the lawful, reasonable, and necessary steps for enforcement. Steps can include courtesy notices, formal notices and possibly even a lawsuit. Determining the best steps to achieve a compliant community starts with assessing what is happening and whether it is a violation – and this starts with the existing governing documents and credible information about the suspected violation. Next, the desired outcome should be determined based on a variety of factors – legal mandate, process, time, expense, logistics, alternatives, etc. – and a thoughtful, balanced approach tends to be best. The process may often be as simple as providing some courtesy information and education to the community; and specifically to a non-compliant homeowner, perhaps in the form of a written courtesy-notice. Unfortunately, a non-compliant homeowner is not always responsive or reasonable, and the process may then necessarily get longer and more complicated (and more expensive).
A solid foundation for compliance and enforcement is always built on a set of quality, updated governing documents and reliable information about, and evidence of, any suspected violation. If the community’s governing documents are outdated or not reflective of the desired goals and conditions, then it would probably be worthwhile to consult an attorney to consider options for possible amendment or maybe even a re-write. Enforcement should probably also be factored as a likely cost of doing business, and it could be prudent to account for the expense-side of enforcement in a community’s budget.
Common violations include the condition of property (including architectural-control issues), parking, rentals, signs, flags, animals, and property uses. Issues can also arise when the governing documents get contradicted, confused or even become legally unenforceable due to changes in the law. It is important to ensure governing documents are consistent with change in the law, as well as having them adapted where possible to account for any such change. In addition to a well-drafted Declaration and set of Bylaws, and where authorized, it is wise to have a set of Rules and/or Policies and Procedures in place to guide and refine the enforcement process. Policies and Procedures can provide a predictable and orderly framework for enforcement to both the homeowners in the community and community leadership – and they can also assist in prompting voluntary compliance, which is ultimately the goal. An experienced attorney can assist in the drafting and implementation of Policies and Procedures. Quality governing documents affirm the adage that an ounce of prevention is worth a pound of cure.
A couple of examples specific to Idaho from Idaho’s Homeowner’s Association Act (Idaho Code § 55-3201, et seq.) highlight the need to review governing documents and determine how they stand-up to recent change in the law. Idaho Code § 55-3206 relates to fining and, among other key things, provides that there can be no fining of a non-compliant homeowner unless authority is “clearly set forth in the covenants and restrictions.”
Another example, Idaho Code § 55-3211 relates to rental restrictions, and provides:
No homeowner’s association may add, amend, or enforce any covenant, condition, or restriction in such a way that limits or prohibits the rental, for any amount of time, of any property, land, or structure thereon within the jurisdiction of the homeowner’s association, unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property.
This is only the first half of the statutory language. Of note, the language “unless” and what follows provides for rental restrictions, post-enactment, if agreed to in writing. The second half of the statutory language is also noteworthy, and is sometimes overlooked:
Nothing in this section shall be construed to prevent the enforcement of valid covenants, conditions, or restrictions limiting a property owner's right to transfer his interest in land or the structures thereon as long as that covenant, condition, or restriction applied to the property at the time the homeowner acquired his interest in the property.
This “[n]othing in this section” portion should not be overlooked because it preserves rental restrictions existing prior to the enactment of the statute, and in place at the time the homeowner acquired the property.
Those were just two examples – fining and rental restrictions. A review of the existing governing documents is where to start, and an assessment of the community’s goals and obligations is a near second, in determining the best course to achieve homeowner compliance and community harmony – whether voluntary or through enforcement. With potentially sensitive issues relating to things like flags and political signs on the rise, there is no time like the present to assess your community’s governing documents and the related state of compliance.
Every community should have a deliberate and engaged enforcement strategy. As part of this, seeking the advice of an experienced attorney may be a valuable step in the process to achieving the goal of harmony in your community. Ultimately, any compliance and enforcement strategy should involve a review of the existing governing documents and a reflective, strategic plan of action.
*** This material was prepared for general informational purposes only and is not legal advice. Nothing stated should be interpreted or construed to form any kind of attorney-client relationship, or as any kind of legal advice. You should not act upon this information without seeking advice from a properly licensed attorney. You should not act, or refrain from acting, based upon any information in this material. ***
Thank You Sponsors