Conflict-Averse Board Members

I serve as President of the Board of a small townhouse community. My board members are conflict-averse and are unwilling to address homeowner violations beyond sending letters. They want to hire a management company "to do the enforcing". I have tried to explain to them a management company would be the messenger but the board makes the decisions on whether a violation has occurred and also has to speak to homeowners about their behavior and hold hearings. I think a management company could be useful but I don't think that you can outsource your enforcement responsibilities. In addition, our governing documents are very weak with regard to enforcement. We would need to update them first in order to address most of the problems that we experience with neighbors.

On a related matter, at our recent annual meeting, some homeowners suggested creating a committee to resolve disputes among neighbors. I think it is a great idea in theory but some of the people that suggested it are violators themselves. Plus I'm skeptical on whether there would be any follow-through. Our community has not been interested in getting involved in assisting the Board with its large amount of work.

Rules enforcement can be delicate, but Melissa's right - it's part of the board's job, so while you can get the management company to do periodic walk-throughs of the community to find problems or take complaints, the board has to drop the hammer from time to time.

There are a number of ways you can address this. First, you said the documents don't say much about enforcement, so start there by consulting with the association attorney to see what you can do. Your documents may have language that gives the board the authority to establish additional rules to flesh out the documents as long as they don't contradict them. For example, if the documents give the board the authority to fine, the board can determine the amount, when it will be applied and appeal rights - as well as what it will do if the homeowner can't or refuses to comply.

You also need the support of the homeowners - most are ok with rules enforcement until THEY get the violation letter. Homeowners need to understand the rules exist to ensure your community remains a clean, safe, attractive place - no one wants to live next door to or across from a slob or someone who plays their music loud at 3 am or lets the dog run wild everywhere, pooping as it (or they) go.

Why not take a poll of the homeowners to see what they think are the biggest problems in the community and how they should be addressed? For example, if parking is an issue, you may want to start there and then work your way towards other issues. You can then tell the owners the board is putting new emphasis on rules enforcement, starting with X problem. Tell the community what the expectations are, how the rule will be enforced and the appeal rights, along with a fining schedule - and an effective date. From there, expect some pushback, but this is when the board will have to stand firm.
I once attended a CAI seminar on the subject and one of the attorneys from our association's firm noted that in the beginning, people will scream, cuss, threaten and all that stuff, but when they see the board is sticking to its guns, they will either pipe down or go broke paying all the fines and legal expenses if they decide to fight this in court (and people will threaten to sue you, so get used to it).

That last part is probably why your board members are squeamish about rules enforcement. You might want to check out the CAI website and take a look at their educational materials on rules enforcement. There's lots of helpful information on drafting rules, how to investigate complaints, what do consider if you decide to fine and when you should turn the mess over to an attorney. Being more familiar with how rule enforcement should work could help everyone's confidence.

One more thing - having a committee to help mediate disputes between neighbors isn't necessarily a bad idea, although I agree with Melissa that anything that may be related to a crime or can get physical (using weapons or otherwise) is best left to the police. Sometimes a neighbor who doesn't have an issue with either side is in a better position to listen and encourage them to meet the other halfway - that would be the goal as opposed to deciding who's right or wrong. I would limit committee members to people who don't have any outstanding violations and specify what type of issues they can hear. There should also be mandatory training on mediation - a local college might offer classes (the association should pay for it) or you could hire the instructor to teach the skills and even help you set up the program.

Thank you, Shelia! I will pass this information on to the rest of my board.

Jerome

I don't think legally the HOA can enforce violations unless they are decreasing property values around them. I'm no lawyer so take this with a grade of slaw, but you don't want to open yourself up to legal issues.

Where'd you get that from? I've never heard anything like that before.

Was it an HOA attorney? I'm not an attorney but I think I can safely say the attorney you spoke to has no idea what he's talking about.

Exactly.

Mark

I have never heard of such a thing. The HOA has to have a fining schedule/process but once in place, most HOA's can fine away for Covenant violations.

We are a 112 home HOA in SC. One reason we hired our MC is they play the enforcer but they do not verify the violation. Violation verification is handled by the BOD. When a violation is reported to the MC (who refers it back to the BOD) or the BOD (and the BOD Members also keep an eye out for violations), the BOD investigates it and informs the MC if a violation notice is to be sent. The violator gets a notice of the violation from the MC and 10 days to correct it. The letter also says fines can commence in 10 days if not corrected. Fines double every 20 days. In some cases they are told to correct the violation immediately like remove a car parked on the grass. The MC handles all the paperwork.

We are not rigidly strict. We let minor stuff (such as mail box covers, trash barrels out longer then in the rules, etc.) slide. Our objective is to remove the violation, not to make money on fines. We will work with someone to eliminate the violation.

After 90 days we would inform the owner we are turning the unpaid fines over to our attorney for collection with possible credit card reporting, lien, and foreclosure. In SC fines can be used to lien/foreclose but out attorney warned us it is "frowned" on by the courts and he suggests we never go that route. We have never had to face this and we hope we do not have to.

Our Covenants contain a two page list of no no's. Our ability to fine is also in our Covenants (not our Bylaws) but our attorney said we needed to make a fining schedule and US Mail it to each owner, which we did. How much we fine and when we fine was left up to us. We use $25 increments. Basically of one corrects the violation in a timely manner we would not fine. Fining is a last step for us.

If I was your HOA I would most likely hire a different attorney ... potentially you did not talk with the sharpest or brightest crayon in the box of attorneys. I would contend the HOA has every right to enforce and maintain the CCR Contract which every owner agreed to upon purchase and which State Statutes give the HOA authority to enforce. However, if you consulted on non-conforming sheds (and depending on when constructed) your State Statutes might be similar to mine ... in which case if an owner builds anything somewhat permanent and the HOA does not address "non conformance" within one year of construction ... then the HOA would and should loose a court case because my State Law notes a one year time frame to address any such issues. Potentially you might have misunderstood your attorney statements ...