By: Brittaney Bones, VF Law Living in a planned community comes with a set of benefits, including access to community amenities, shared spaces, and often a sense of community belonging. However, it also comes with a set of rules and regulations that every owner and resident must adhere to. These rules are typically outlined in the community's governing documents, including the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), Bylaws, and Rules and Regulations. Unfortunately, not all residents follow these rules, which can lead to frustration and tension within the community. The community association’s Board of Directors is often granted the responsibility and authority to do all things necessary to carry out and enforce the terms and provisions of the governing documents. When an owner or resident is in violation of the community association’s rules, the Board of Directors may rely on a combination of enforcement tools in order to persuade the offending owner to abate the violation and deter future rule violations. I. Demand Letters The least severe enforcement tool available to an association is to send warning notices and demand letters to owners who are in violation. These letters can be sent directly from the Board of Directors, or by the Association’s manager or attorney. The letters should outline the violation, include a citation to the relevant rule or covenant, and request that the owner correct it within a specified timeframe. This letter serves as a warning to the owner that the association is serious about enforcing the community rules, and may resort to additional enforcement action if the owner doesn’t not voluntarily abate the violation.
I. Fines If the violation is not corrected within the specified timeframe, the association may consider imposing fines if explicit fine authority exists in the association’s respective covenants and restrictions. Prior to assessing fines, homeowner associations must comply with Section 55-3206. Specifically, the association must give the owner written notice at least 30 days prior to a Board meeting, during which the Board will vote on whether to impose fines. The written notice must either be personally served on the owner or be sent via certified mail. The fine cannot be assessed until a majority of the Board votes to levy the fine at this meeting. Additionally, if the owner begins to resolve the violation between the notice and the Board meeting, the fine cannot be imposed. The amount of the fine is typically outlined in the governing documents or in a schedule of fines adopted by the Board of Directors. Fines may be assessed daily, weekly, or per occurrence depending on the nature of the violation and the terms of the association’s governing documents. II. Filing a Lawsuit If fines are not effective in correcting the violation, the association may need to take legal action by filing a lawsuit against the owner. The lawsuit may seek both injunctive and declaratory relief, as well as recovery of damages for any harm caused by the violation. Specifically, the suit would request a declaration by the Court stating that the property is in violation of the association’s governing documents, and an injunction requiring the owner to bring the property into compliance. III. Exercising Self Help In some cases, the association may be able to exercise self-help to correct the violation. This means that the association may enter the owner's unit or lot to correct the violation, such as by trimming overgrown bushes or painting a house that is in disrepair. However, self-help may only be authorized in specific situations, and if allowed, there are typically specific procedural steps and notice requirements the association is required to follow. Before exercising self-help, consult with a legal professional to ensure the association has authority and is in compliance with any required procedure. Ultimately, the enforcement tools available to a planned community association can help deter and abate violations of the association's governing documents. While demand letters and fines are often enough to correct violations, legal action may be necessary in some cases. It is important for the association to use these enforcement tools judiciously and in accordance with the governing documents to ensure that all residents are treated fairly and the community remains a desirable place to live.
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