Sunday, 18 November 2018
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This Old House - Do-it-Yourself

Condominium Enforcement: Too Little Or Too Much?

Written by Posted On Tuesday, 03 July 2018 12:24
Condominium Enforcement: Too Little Or Too Much? Pixabay.com

Question:: I read and enjoyed a recent column that you wrote on condominium living, and especially the part where you said that "many people are becoming quite disillusioned with community association life." I fully expected you would then cover my problem, but you did not. You said people were unhappy with "enforcement, rules and regulations." Although I agree with you, the opposite is also true. I live in a condominium complex where there seems to be no rule enforcement. I have noisy neighbors, neighbors with three cars (for their two-person, one-bedroom condo), neighbors who erect anything and everything on the common elements. The Association does not have the will nor the resources to do anything about these qualities of life violations. The lack of enforcement of the various rules and regulations of my Condominium Association has prompted me to consider selling and moving out. Would appreciate your comments. Sharon.

Answer: Serving as a member of a board of directors of a community association is, to say the least, a very difficult task. You are "damned if you do, and damned if you don't." All too often, competent, responsive boards of directors are faced with a difficult decision -- namely do we enforce our rules or can we ignore some of the minor violations that occur within the community?

More importantly, many boards of directors do not have the resources -- both legal and money -- to properly enforce any violation of the rules and regulations.

Almost every set of community association documents authorizes a board of directors to enforce their own documents. A board can enforce in a number of ways.

First, the board generally has the authority under the association Bylaws to go to court seeking a unit owner to comply with the Bylaws. This is time consuming and expensive, and no one can predict with certainty what a court will do. Many courts throughout the country are now becoming concerned about having to enforce relatively petty matters, especially if the alleged violation occurs within the confines of the unit, as compared to the common elements.

Second, the board can establish a set of fines, and impose a fine against a unit owner if there are any violations of the community association documents. Generally speaking, it is recommended that if a board of directors goes this route, that a "due process hearing" procedure be established. Under this process, the board would advise a unit owner of its intention to impose a fine, and hold an informal hearing giving the errant unit owner an opportunity to present his or her case as to why the fine should not be imposed. The unit owner should be entitled to fully participate at this hearing, and indeed bring his or her own lawyer to the hearing if requested.

The fine procedure is workable, since the fine would then become part of the unit owner's financial obligations to the association. If the unit owner does not pay the fine, the association would have the right to go to court seeking a money judgment against the unit owner, and in most cases (depending on the documents themselves) all or a portion of the association's attorney's fees could be recovered against that delinquent owner.

The major problem facing most boards today is whether they in fact have to enforce all of the rules and regulations. The current trend in the law is that a board of directors can ignore certain violations, if the board exercises its business judgment. What is business judgment? The board should consult its members and its counsel, and have a full debate and discussion in open session as to why the board wants to ignore certain violations. If, after going through this process, the board makes such a decision, the board should be insulated from liability if a unit owner wants to file suit against that board for failure to enforce the association documents. Many courts have taken the position that unless the board does something illegal or against public policy, they will not get involved -- even if the board made a mistake. That is the gist of the "business judgment rule".

Clearly, there are some rules and regulations which a board has to enforce. For example, if an association owner is creating a life-threatening problem which impacts on the health and safety of other unit owners, the board has an obligation to enforce those infractions, even if it necessitates spending legal fees to accomplish this objective. On the other hand, there are numerous violations which the courts have considered "petty." In my opinion, a board does not have to enforce every single rule and regulation, merely because they are on the books of the association. But, the board does have an obligation to advise the owners why the board is refraining from its enforcement activities. Presumably, if enough owners disagree with the board's decision, they can attempt to mount a recall petition, whereby the current board would be thrown out of office -- or not elected at the next annual meeting.

But a board of directors is cautioned that they cannot enforce the rules and regulations in an arbitrary or capricious manner. They cannot be selective. If they are not going to enforce a particular rule, this non-enforcement has to be across-the-board. Conversely, if the board is going to enforce its documents, the enforcement has to be fair and even and levied against every owner who is in violation.

There are a number of things you can do as an individual owner. First, you can mount your own political campaign and try to get elected to the board. Your campaign would consist of a promise to enforce the rules and regulations.

Second, you have the right as an owner to sue the board itself, by asking the court to force the board to enforce its rules. However, as discussed earlier, if the board has exercised its good business judgment, and has opted not to enforce certain rules, a court will generally not rule in your favor.

Finally, you have the right to call a special meeting of the association for the purpose of directing that the board enforce certain regulations. Every set of community association documents contains a provision on how many unit owners have to sign a petition calling for a special meeting. If you can mount sufficient support, you may want to use this technique to force the issue to the table. Keep in mind, however, that a community association is a mini-democracy. Right or wrong, if you do not have sufficient support within your association, you may lose your battle.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

kasslegalgroup.com

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