Posted:
I've been reading this thread with interest and have not commented yet, but felt compelled to after reading Kevin's post.
I would like to respectfully disagree with some of his comments.
First I'd like to say that, on the contrary, complaint-driven enforcement stands up very well in court (it has done so for us on 2 occasions).
The caveat is this: you MUST have a policy that you enforce CONSISTENTLY.
You MUST document each and every complaint, retain it in a database of some sort, even if it's a hand-written "log," so that IF someone decides to press their luck and hit back with that "selective enforcement" as a defense, you can show, on the contrary, that the board instituted a complaint-based process, and based on that process, each and every complaint, regardless of how large or small, was quickly and consistently addressed.
It doesn't take much to track, but you need to show your history of WHEN the complaint was made (you do NOT need to show who made it -- and we simply state whether it was made in person, by phone call, by email, or by snail mail);that the violation was CONFIRMED by a board member; WHAT action was taken (letter sent, phone call made, etc); RESPONSE from the violator; WHETHER FURTHER ACTION was required or WHETHER COMPLIANCE was obtained.
Once a violation is noted as "CLOSED," we still retain the details for historical purposes, especially if we need to see if the violation is a repeat.
Now, having said all that, there is still the issue of the board's FIDUCIARY RESPONSIBILITY to the CC&Rs. First of all, our subdivision has over 275 homes on 10 streets. The BOD is all volunteer. It is unreasonable to expect that we should be somehow "policing" the neighborhood, trolling for violations. Especially since most of the BOD work and that would leave violations that occur when we're not around to go completely un-dealt with.
But going back to our FIDUCIARY RESPONSIBILITY to the CC&Rs, as we are residents as well as directors/officers, we have the right and duty as other residents to log a "complaint" about a violation. In fact, our duty to do so is a little higher for several reasons, not the least of which, we will often have a broader understanding and knowledge of what is allowed and what is not allowed. Therefore, if we "notice" a violation, then it would be our duty to report it IF it could be determined that we would have a reasonable awareness of the infraction.
In other words, if, on my way to work every day I pass a car parked on the street at a certain address, I might SUSPECT that they have parked it there overnight or that it is there for most of the day, but I really have no real knowledge of that, especially if it is gone when I return and I don't generally leave that way any other time of night.
However, if I live next door to or down the street from someone who I SEE has a car parked on the street when I let my dog out at 11:00 pm, and then it is there STILL, with dew on it, at 6:30 am when I let my dog out again, I SHOULD be able to reasonably assume that it was parked there overnight. And if this happens every day, I SHOULD, as part of my fiduciary responsibility, log a formal (yet still anonymous) complaint.
Now, to address the people who want to complain about OTHER people who are violating, then we say the same thing each and every time:
We do not police the neighborhood for violations and rely on the residents to inform us when a violation may have occurred. We have a policy on the board of investigating each and every complaint. If you would like to file a formal complaint and provide the address, we would be more than happy to send that resident a reminder notice of the CC&Rs as well.
Then if that person actually goes out and does the leg work and provides us with a list of any alleged violations, we have no problem logging and reviewing the complaints. Why would we? It's our responsibility.
At any rate, it's never a fun thing to do, that's for sure, but the key with whatever process you use is in the consistency -- and keeping a record.