By: Brindee Collins, Collins Law PLLC
Enforcement of the CC&Rs or the rules and regulations of a community association is one of the most important responsibilities of the board of directors and the management companies that are hired to help run an association. Despite its importance, it is one of the most difficult jobs, due to lack of proper enforcement tools, interpersonal conflict, mistakes in documentation, and differences of opinion. The question of how best to address violations and improve compliance in a neighborhood is one of the most common questions I am asked as a legal practitioner in this field. Over the years, I have noticed that associations with enforcement problems tend to have a number of things in common and that the following tips and tricks can help smooth the way for a better enforcement process, success in addressing violations, and avoiding conflict with homeowners.
Know Your Governing Documents
A board of directors and their manager must be intimately familiar with the terms of the governing documents of an Association, including the CC&Rs, the plat map, the rules and regulations, the articles of incorporation, and the bylaws. These documents are both the sources and the limits on the Association’s powers and responsibilities, and almost every enforcement issue revolves around the terms of these documents. In Idaho, restrictive covenants are viewed skeptically, as being contrary to the right to use property freely. Any restriction that is not clearly expressed in the terms of the governing documents will likely be considered unenforceable, so it is important to ensure that you have a good understanding of exactly what restrictions your association’s governing documents actually place on the land within the development, and that the language is drafted in a clear way, that is easy for everyone to understand, with no ambiguity. You can only enforce the language of the governing documents based upon its clear meaning, not based upon what you thought it meant or what you might wish it meant. It is also crucial that you be aware of any language that limits your right to enforce, such as required mediation or alternate dispute resolution clauses, which are becoming more and more common.
Do Not Ignore Problems in Your Governing Documents – Fix Them
The governing documents should always reflect the particular needs and circumstances of each individual association, and if they do not, they should be amended or updated. The original governing documents of an association are often drafted by the developer from basic form templates. They often lack language that allows the association to function in a long-term way as the development ages, or they may include restrictions that simply do not make sense to those who ultimately end up owning property and living in the development. The board of directors does not have the option to simply ignore a provision of the covenants that is unpopular in the development – they have the obligation to enforce the covenants as they are written – and this sets bad precedence for the enforcement of other provisions in the future. Similarly, the board of directors, as mentioned above, cannot enforce a restriction that is not written into the governing documents, and ambiguities are resolved in favor of the free use of the homeowner’s property. If there are problems in the documents, the best thing a Board of Directors can do to make its enforcement job easier is to work on amending the documents and ensuring that they match the Association’s needs and expectations. If you are missing key language, if the language is unclear, or the language does not make sense for the needs of your association, your documents should be properly amended.
Know the Law
Idaho has relatively little state law governing the operation of community associations, but there are important legal authorities that every Board and manager must be familiar with in order to effectively run an Association and enforce the governing documents. The primary statute related to community associations is Idaho Code Annotated §55-115, which limits an Association’s right to impose violation fines and collect attorneys fees in enforcement actions, and limits the Association’s ability to restrict or prohibit rentals, the installation of solar panels, and the display of certain political signs and flags. Many associations run into trouble attempting to restrict or limit rentals in a way that violates the law, or by inappropriately restricting the placement and display of solar panels or political signs. An association may have the right to govern or restrict these issues, but it is important to review your governing documents within the scope of the relevant law and ensure that the association’s enforcement actions are lawful. Similarly, while the brunt of your association’s enforcement authority comes from the association’s governing documents, it is important to understand the language of this statute and the limits it places on an association’s enforcement power and process, so that you can ensure your enforcement process or policy is lawful. In any areas where the governing documents or the board’s processes may run afoul of the statute, the statute will govern. As a housing provider, every community association is also subject to the terms of the federal Fair Housing Act and its anti-discrimination provisions. Associations, including their Boards and managers, can be held liable for enforcement actions that unlawfully discriminate against a homeowner or resident, and the consequences can be very serious.
Err on the Side of Too Much Notice and Keep Good Records
I often quip that I wish my clients would treat every enforcement matter as if it were going to end up in Court, and that a judge will be reading everything that the board and managers write, such as emails between board members (and managers) and letters to the violating owner. An association that can provide proof a well-documented enforcement process, with copies of numerous notices sent to the owners, dated photos of the violations, and detailed records of any communications with the owners, will always have an easier time with its enforcement process. In my experience, one of the most common causes of dispute and interpersonal conflict with owners is lack of notice and communication. An association needs to be able to prove when and how often the violation was observed, when and how often the association has attempted to communicate with the owner about the violation, and that the communication process has been done in a professional and consistent way.
A well-documented enforcement process is not only important in providing adequate notice to the violating owner, it is a requirement under the law for an association wanting to assess violation fines or attorneys’ fees for enforcement action. Before an association can fine a violating owner or collect attorneys’ fees for any enforcement action, Idaho Code § 55-115 requires the board of directors to provide the owner with written notice of the violation and the time and date of a hearing with the board of directors, at least thirty days in advance of the hearing. The letter must be sent via personal service or certified mail, and the hearing must be held, with a quorum of the board, before fines or attorneys’ fees can be assessed. Any association wanting to charge violation fines or assess attorneys’ fees must be able to provide copies of all of this documentation, including the original 30-day notice, proof of the service or a copy of the certified receipt, and meeting minutes from the hearing, showing the outcome of the hearing. Without this documentation, there is not legitimate proof that the statute has been complied with and the fines or attorneys’ fees may be subject to legal challenge by the owner.
Be Uniform and Consistent
Aside from providing adequate notice, uniformity and consistency should be two of the most important goals for an association or manager wanting to avoid dispute and conflict with violating owners. Often, these two words are used interchangeably, but in this context, they mean very different things. Uniformity is treating the entire development the same, and enforcing the CC&Rs or the rules and regulations equally across the board. Consistently enforcing the governing documents means following the process for enforcement each time a violation is observed, in a timely manner, and with proper follow-up. The lack of uniformity or consistency in the enforcement process almost always leads to claims of the dreaded “selective enforcement,” which is one of the most common defenses of a homeowner faced with an enforcement issue. Every board and manager has heard a violating owner claim that “Joe down the street has been parking his trailer in his driveway for the last six months and nothing has been done,” or that they will start putting their trashcan away when the board starts enforcing the restriction on unleashed dogs in the common area. These claims of “selective enforcement” may or may not be legitimate, but a board that takes uniform and consistent enforcement seriously faces much less likelihood of these objections being made in the first place and is certainly in a better place to defend their enforcement action if an owner truly pushes back against the Board.
Understand What Enforcement Tools Are Available
The governing documents of a community association are not only important for establishing the restrictions and standards of use in the development – they are also the source of and a limit upon the association’s powers of enforcement. A properly drafted set of CC&Rs should authorize the board of directors to impose violation fines, suspend voting rights and common area access, or pursue legal action against a non-compliant owner. Many community associations also have the right to “self-help,” which is the legal authority to enter onto the property and remedy the violation, at the expense of the owner, but this is a remedy that I strongly advise my clients to use with excess caution and only under the most limited of circumstances.
Unlike many other states, Idaho law does not provide community associations with any specific tools for enforcement – rather, §55-115 places limits on an association’s enforcement authority and imposes certain procedural processes on an association seeking to charge violation fines or collect attorneys’ fees for enforcement actions. Violation fines are very valuable for addressing short-term, single instance violations such as parking, trashcans, and the like, but they also serve as a valuable tool in remedying more serious violations like landscaping issues, unauthorized rentals, etc. Any community association that attempts to assess violation fines against a noncompliant homeowner must have the express authority to assess monetary penalties written into the CC&Rs, per state law. That means that a reference to fines in the bylaws is not sufficient, and a board cannot adopt an enforcement resolution that gives them the authority to impose fines, unless the CC&Rs expressly grant the association that power. Similarly, if an association does have to pursue legal action against an owner, the CC&Rs need to provide the association with the right to collect the attorneys’ fees incurred in doing so from the owner as a limited assessment. If your association’s CC&Rs are missing these important pieces of authority for the association, it is very important that they be updated, and that the association does not take any enforcement action that exceeds the authority of the governing documents in the meantime.
Everyone has heard horror stories of the “out of control” homeowner’s association. Stories of HOA boards that are on a power trip and out to ruin everyone’s lives crop up in the local news cycles on a consistent enough basis that many hold a skeptical view of community associations. Those of us who are actually involved and familiar with the community association industry know that the vast majority of board members and managers are doing a good job, with good intentions, in a professional way, and just want to operate their associations properly and enforce the rules as they are written. The good, reasoned-based decisions of an association, however, do not make the news. As a board member or a manager, that should one of your goals: enforce your CC&Rs without making the news.
An association can avoid that type of bad press and a lot of conflict with homeowners by being fair and reasonable in the enforcement process. Properly running a community association involves a lot of decision-making and discretion, and a board member and manager must be aware of that and be prepared to make reasonable decisions and err on the side of fairness, if possible. Homeowners are not your enemies, and it is important that they not be treated as such. Give owners adequate notice, a little grace, and an opportunity to comply, and you may be surprised how much easier the enforcement process becomes. Make sure that your interpretation of the governing documents is reasonable, and take factors such as weather, the season, financial concerns, family hardship, or other issues into account when determining what the fair course of action in an enforcement issue might be. Listen to those homeowners who are making an effort to comply or work with the board and give them a chance to do so.
Each of these tips and tricks can help an association to establish a smooth and effective enforcement process, and each of includes shades of the last – be reasonable. Acting reasonably and fairly in the enforcement process will not only decrease the amount of hostility and push-back that you get from homeowners within your association, it will lead to a greater chance of success in those cases where resolution is not possible and an association ends up in court with an owner, either in a case to enforce the governing documents or as a challenge to the association’s enforcement actions. An association that can demonstrate that it acted reasonably, in accordance with the governing documents, followed the law, and gave the owner a lot of notice and an opportunity to be heard will have a much greater chance of prevailing and successfully enforcing the governing documents, which should always be the goal.