Posted:
Tim gave great advice (as usual!) so I’ll try to speak in general terms regarding rules enforcement. As you’ve already noticed (if not, just wait – you will), rules enforcement isn’t easy and can cause a lot of hoo-hah throughout the community, with people yelling things like “this rule is stupid,” “I can do whatever I want with my damned house,” “how come I’m being singled out” and of course “I’m gonna sue if you keep this up!” And a little more.
If you want to get the legal perspective, you’ll need to talk to your association attorney about that because what works in one state may not work in others. That said, another problem that crops up with a new emphasis of rules enforcement is consistency or lack thereof. Your covenants have rules regarding the maximum height of plants, but there are also dozens of trees that are over that. If nothing was said in the past, how do you go about enforcing this when someone points out “the board didn’t say anything before, why is it an issue now?”
As Tim noted, the first step is to give everyone advance notice of what the rule is and given them a chance to fix the problem. When you do the community walk-through and find violators, consistency and fairness will be key, so if you see, say 20 violators, notices go to all of them – don’t say things like “well that tree isn’t as high, so we won’t send him/her a letter.” Establish an appeals process so people will have a chance to tell their side and you can determine what should happen next.
For the bull-headed, you’ll have to decide how far you want to push, so if you’re going to look into fines or lawsuits in Small Claims Court, brace yourself and get to it. People will be made, threaten to countersue, go to the media and all that, but the board needs to be clear in its expectations. The first few times you press the issue, there will be some drama and it may go one for a few years, but if the board stands its ground, people will see you mean business. If they want to pitch those CCRs, it has to be done the right way – draft some rules, get community input, consult with the attorney to see what you really can and can’t do, send out the revisions, let the people vote and live with the results.
For me, rule enforcement begins with determining the size of the impact. People can enforce the covenants against each other, so if, for example, the complaint involves a plant that’s creating a blind spot that can (or has) cause traffic accidents, that’s more likely to get my attention than someone honked off about not seeing a lake from their deck because a tree is in the way. That doesn’t mean the board should ignore that tree, but it has to pick its battles because if we throw down, there will be time and resources consumed in addressing it.
Take a look at the complaints you’ve received and look for patterns – for me, the stuff that could impact a lot of people takes priority. Some may be more of a dispute between neighbors – the board should stay out of those unless a lot of people are affected (not the ones who are simply taking sides).
I’d also poll the neighbors and get their take on plant size and the problems it creates. Perhaps the CCRs need to be tweaked now that everyone has bigger plants. Maybe the board could consult a landscaping expert who can recommend what type of plants are best for your community and then the CCRs could be amended (with homeowner approval) to only allow those plants, along with expectations regarding pruning, placement, etc.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius