More of Waivers

Hypothetical -

A BOD doesn't enforce HOA Bylaws, rules, and regs. One homeowner decides to do something about it. She gets elected to the BOD. But all alone, she isn't able to do much to change things. Then other like-minded owners get elected to the BOD. Finally, those who were in support of applying the bylaws as written are in control. The BOD starts enforcing what was in the docs.

But wait. Some of the old BOD members say - No - you can no longer enforce these things. They were waived. They are no longer effective. Course of conduct must be applied.

Hmmm. Appears to be a stale-mate. Those who got elected to finally get things enforced might not be able to. Those who were voted out for not enforcing might be able to prevent others from enforcing. What gives?

Any thoughts?

The Board that is in place is responsible for enforcement.

The members of a former Board are now simply, but importantly, members of the association.

The Board tightens (I would never say “starts”) enforcement in a neutral, calm manner. Understanding what can be done goes back to the CCRs and related governing documents - EVERYTHING must be in accordance with these docs.

Not sure what PA statutes provide for, or whether your HOa can fine. Usually, there are a series of courtesy, then more direct letters to violating owners, then the Board levies fines, etc.

Failing all other options, the Board may take legal action to force compliance. Some Boards have taken legal action against a cooperating owner to “test” their ability to win, and thereby establish a precedent in court - at the lowest possible cost.

Don’t get hung up on the ankle biters ... follow your docs and process, and your state’s process ... address every issue in a neutral, fair manner, up address them directly. Do not get defensive and quit. Take the long view.

HOA boards generally possess the governing power to issue waivers of by-laws on a case by case basis. Therefore, the new board of directors shouldn't believe that it can tour the neighborhood for compliance issues. The records of the HOA - or meeting minutes - need to reflect proof of waiver. This is why ARC committees are important.

Don't believe the old board's verbal assurances. If the community is rife w/ "violations," those violating actions may need to stand as the board re-asserts its commitment to by-laws enforcement....it's a balancing act.

NpS, do you agree that in the past, many (both HOA directors and rank-and-file HOA members) have queried hoatalk about a covenant that has not been enforced for years? Typically it is an architectural covenant, like sheds, chilren's outdoor swing-and-slide sets, above-ground pools or fence heights. The poster notes that there are a number of violations in the HOA that have existed for years. They query: Can the HOA still enforce the covenant?

My recollection is that the majority opine that the covenant can still be enforced. The majority typically responds with something like, 'You were properly noticed (with the governing docs) when you bought the property. You have a contractual obligation to comply with the governing docs. It does not matter that violations like this have occurred repeatedly for years.' A minority of responders may bring up abandonment of covenants, based ultimately in the (firm) case law rule that the terms of a contract may (though not always) be modified by the subsequent actions of parties to the contract. Given how dense almost any appeals court decision is, I think this is not an easy concept around which to wrap one's head.

Practically speaking, it seems to me that the more competent board members are going to be like the aforementioned majority. This majority for the most part wants to 'get it right' when they serve as board members. The easiest way to 'get it right' is to refer to the written covenants, written bylaws, sometimes state statutes and maybe once in awhile the federal Fair Housing statute. Covenants, bylaws et cetera are not that hard to read. Case law is something that could be said to be beyond a volunteer HOA director's grasp. It will almost assuredly be beyond a rank-and-file member's grasp. Anything that may involve case law is often sent to the HOA attorney.

The aforementioned majority may chide the member or minority director who says it seems like the covenant or Bylaw has been legally abandoned (per case law). The member or director may persevere a bit and suggest that the Board do as, say, www.hoaleader.com/public/301.cfm says: Run a time consuming and expensive vote of the members to re-instate the bylaw or covenant. Who is going to win? Regardless of how severe the abandonment has been, all signs are that the aforementioned majority is going to win. In practice, is there a stalemate? I do not think so. In theoretical law (long before anyone goes to court), is there a stalemate? Again I do not think so, though who the victor is in a lawsuit will depend on the specific circumstances; whether the dispute makes it to a court of appeals; and so on.

The OP at http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/274860/view/topic/Default.aspx came here asking if her Bylaws had been waived due to years of their being entirely absent and their not being disclosed (as required by specific statute, with a penalty if they were not disclosed). She wondered if the (seemingly or actually legally abandoned) Bylaws needed to be re-instated (presumably through a vote of the members). If she's on the board, she will almost assuredly face people like the majority here. This majority will prevail and start enforcing the Bylaws. From there I think it is anyone's guess as to what will happen. If forced to bet, I would bet that all the members realize the cost of a court fight is not worth it. It would be cheaper to, for example, just get up-to-date on one's HOA assessment so one could vote again.

As others have noted, just because the CCRs weren't enforced in the past doesn't mean they've read forever. I think the previous board is still salty over being voted out and this new board has made it clear the rules are going to be enforced. It's true there may be some drama along the way - people are always stickers for other people to follow the rules, but when THEY get a violation letter, the bowling about it being unfair, selective enforcement and all that comes into play.

From what I've seen and experienced over the 10 years I was on the board, fairness and consistency is key. That and a strong stomach because you will be tested, some will threaten to sue, or have you recalled, but that's how change is - it's not always pretty. If you remain consistent and are able to withstand the pressure, people will soon come around if they don't, at least you tried and that all you can do.

I recommend the following:

1. Remind everyone why the rules exist - to help establish and maintain a clean, safe and attractive neighborhood. Everyone agreed to comply when they purchased their homes. Admit the rules haven't been enforced consistently, but that has to change

2. Work with the association attorney to develop a p!ain English version of the CCRs, with the appropriate citations. Encourage everyone to review the CCRs - post them on your community website so they can be downloaded.

3. Take a poll to see what homeowners think about rules enforcement. What areas are in need of more or less enforcement? What areas need more clarification (this may mean amending part of the CCRs)? By getting homeowners involved in the process, you may increase your chances of compliance.

4. Consider a community walkthrough to identify problems, such as exterior changes made without board approval. In some cases, you may not be able to determine who is responsible, so you may have to say the change can stay, but effective immediately the homeowner is responsible for compliance. Keep a record of this so future homeowner will also be aware (if they don't want to be financially responsible, they'll need to work that out with the previous owner).

In other cases, give the homeowners time to correct violations - 30-90 days, depending on how long it should take to fix. Include an appeals process and how to apply.

5. After all this, you should be able to set a date when rules enforcement begins in earnest because everyone would have had adequate notice and time to get their house in order. Establish a rules enforcement committee to review the process and make more recommendations to the board.
You should be working with the association attorney throughout so your efforts will have a better chance of standing up in court, if it comes to that. And it will, because people love to threaten lawsuits and some carry out those threats.

Good luck!

PS - don't try to set rules for EVERYTHING. No one will take the to read them all and there are some things the board shouldn't bother with at all (e.g. most neighbor-neighbor disputes). You won't have the patience or time to deal with all that anyway. Sometimes people need to use their brains and act like responsible adults to fix their problems instead of cussing, yelling, throwing punches or gunfire.

George, thanks for your comments – here’s my rationale for saying what I said, but if you still disagree, that’s ok too (healthy debate without name calling is a good thing!)

First, you’re correct that poll responses can be all over the place (assuming you even a decent number), but that’s not why I recommend them. Hopefully, you’ll get enough responses that will help identify patterns. Perhaps there are areas that are creating a lot of confusion because no one knows what the rules are, or the previous board indulged in too much selective enforcement. If you know what the patterns are, you can see where you may need to clarify some things.

I think polls can also help people think about rule enforcement more seriously. Maybe they didn’t know certain rules exist or have an idea on how another one should be amended or dropped altogether. This can encourage positive dialogue between the community and the board – Lord knows you’ll get a lot of “the last board didn’t enforce A, why are you sweating me now????”

As for a poll excusing the board from not doing its job – nope, that’s not why this is being done. Virtually everyone on this website who is or has been a board member knows budgets and rule enforcement are the most difficult aspects of the job, but just because it’s hard doesn’t mean you can’t or shouldn’t do it. Why else has NpS’s community come to this point? Previous boards didn’t do the job for whatever reason, and now the new one has to deal with all the education, appeals and pushback they will surely get as soon as a round of violation letters go out. Consider a poll as a type of warning shot – this is coming, so homeowners need to educate themselves and govern themselves accordingly.

Regarding the community walkthrough – Boards AND homeowners need to read the documents and follow them (how else can you enforce the rules if you don’t know what they are?) If you have questions about anything, speak up and ask the question (that’s what grown people are supposed to do).
In my community, our walkthroughs are done by the property manager – the staff’s more objective and they’re already out there to identify the common areas that need repair. We ask them to identify some of the more obnoxious problems and take photos that are time and date stamped. The photo can go out with the violation letter and then it’s easier for the homeowner to see what the letter’s referring to. If it’s been addressed, they can take their own photo and send it, or file an appeal.

You’re also correct the rules have always existed even if enforcement was lax or non-existent. However, our attorney suggested an effective date so people would know what was coming and so they’d have time to change their behavior. After that, no more warnings or excuses. I realize people may squawk or sue, but I want the judge to see a process – it’s true your honor the rules haven’t been enforced consistently, but many of the people who elected us stated they wanted a new emphasis on rule enforcement. We want to make sure everyone understands why this is happening and give them time to educate themselves on what the rules are and make any corrections. We did all of this and have documented everything we’ve done – but this jackass has fought us every step of the way.

The judge will make the final decision anyway, but I’d rather do everything I can up front to increase my chances of winning.
Finally, those “current rules” may have been written 10 or 20 years ago. You should start by enforcing them, but as life and people continue to evolve, you may notice that the rules the developer put in place don’t work in 2019 (what’s left of it). Some will always be necessary; others can be dropped and the rest need a little (or a lot) of tweaking. We aren’t talking about the 10 Commandments, which don’t need to change (killing people is just as wrong now as when Moses came down Mount Sinai). However, parking may be more of a challenge because people have more cars and they’re bigger, so you have to work with that. You may even find the enforcement itself needs to evolve (e.g. there are no fines, so the Board will have to establish them, along with a fining policy)