Violations after turnover

All:

New poster. Any guidance on this subject? My community's HOA was turned over to residents recently. The new board members are already in a pickle. The developer administered the HOA through a management company. For its own reasons the mgt. company largely ignored covenant violations. Other than sending letters of violation, there was ZERO followup. Now the incoming board has to deal with blatant violations that have been largely ignored for 2 - 3 years. It seems unreasonable to sweep through the neighborhood and demand wholesale corrections. Yet it also seems a violation of board responsibility to ignore violations because of the danger of precedent-setting. Clearly, we cannot target individual violations without also targeting all violations. Somwhere there is a balance between fairness and responsibility, but the new board is finding it impossible to agree on what the balance point might be.
Any suggestions???

Tim,

I would suggest the BOD send a letter to all members informing them that they can see that violations have gone unchecked for the past 2-3 years but now that is going to change. The BOD charged with the resp of upholding the gov docs which means they have an obligation to notice violations of the CCRs, and rules. Also let them know they are being given a grace period of 30 days, but effective March 1 (or whatever date the BOD chooses), violation notices will be mailed and appropriate action will be taken if the violation is not cured w/i the time period specified in the notice. You may also want to include a summary of how the noticing and fining process works.

You will get different answers based on the same two basic views: whether HOA is a business or a government.

What Mary says is exactly how it should be done if you run HOA as a business - a blunt enforcement. From your statement it sounds that the board is actually concerned about the residents. This "unhealthy attitude" might get your HOA shoehorned into a government! The board should put the HOA interests first, not the residents. Remember: homeowners come and go, but the property with the restrictions stay.

Choose Robert's approach if your board sees HOA as a government . The residents can amend the bylaws if the violations are wide-spread, and make no sense. They just need the board to represent their interests, provide opportunity to express opinions, to vote, etc. - town-hall meetings or online forum, whatever gets more attention.

I don't know what exactly gets violated in your HOA - if its a neglect from the developer that hard to fix, suing the developer is also an option.

But whatever you do - first thing the board must answer the basic question: is HOA a business or a government? The rest is easy.

It's harder to repair than start anew.

Does the board have the power to amend bylaws or CCRs?

So look at these "violations" and determine what ones are detrimental to property values and what ones can be relaxed or amended so that there are more options avialable to homeowners.

Tim,

It really shouldn't matter who is on the Board or what the Board agrees is a "balance point". Read your docs and follow them.
Make sure the homeowners know that the developer has not been enforcing the covenants and the responsibility of the Board is to enforce them. I would not go looking for violations, but I would make sure to follow up on the ones the Board is aware of.

Make sure you follow your docs and don't try to determine what is "fair". . .that will just get you in trouble. Be very clear and give ample warning to the membership that the Board will be doing what they were elected to do. Also make sure you let people know they must have written approval from the developer for any deviations from the covenants, otherwise it must go through the normal procedures for approval.

Tim,

My HOA had a similar issue where the Architectural committee cited some and may or may not have done any followup. Adding to the confusion was the fact that we knew paperwork was missing from the files.

Our decision was to start from scratch as it was too difficult to figure out everything that happened. If it was a violation in the past and not corrected it would still be a violation now. So, every one we saw we treated as if it was new - followed the enforcement procedures to the letter for each one and had very little trouble from the owners.

Some complained that it's been like that for years and unless they recently purchased the house with the change (as my State law covered that issue) then we asked for documentation of the approval stating nothing was in writing. If they provided documentation, we accepted it. If there was no documentation the Committee continued to follow the enforcement procedures.

Hope this helps,

Tim B

Robert,

You said "This is a tough one. Can the developer violate the covenants"

I don't think the developer is allowed to "violate" the convenants, but often there are items written into the covenants that give the Board or the developer the power to approve something if they deem it "architecturally pleasing" or some such wording.
The real question is whether you request documentation that it was approved by the developer or is someone saying "the developer said it was ok" enough?

We require an application on file for everything whether it was approved by the developer or a prior board. If there is no way to show it was approved, then it goes through normal review procedures. If there is proof it was previously approved, then we note the file so the homeowner isn't bothered by future Boards asking the same question.

You said "If the association suffers no harm to a change the developer decreed, I would be inclined to allow"
I would agree with this statement, but again they have to show it was decreed by the developer. Right?

You said "If there is multiple transgression I would be inclined to determine the tenor of the ownership and if favorable ,amend the covenants and Grandfather the exceptions"
It is really up to the membership to vote to amend the covenants. The Board cannot just decide that "several people have basketball hoops on the fronts of their garages, and it doesn't hurt the association, so we are going to grandfather them". Actually, they can, but it doesn't make it right.

So the question is does the Board ignore these violations until the covenants are changed (which can often take some time) or do they follow the docs and send a violation notice? You are right that it is not cut and dried, but only because the Board makes it so. The docs may be clear when they say "no basketball hooops are to be mounted on garages", but the Board muddies the waters by saying "well several people have them and we don't see that it is a problem" or "they have been there for several years and nobody has complained so we should just grandfather them".