AssociationHelpNowTM READ BY ASSOCIATION BOARD MEMBERS AND MANAGERS
One resident constantly complains about another resident who is in violation of a HOA rule. As a board we are aware of the violation but allow the situation because of the personal situation involved. We have communicated to the complaining resident we do not wish to discuss why we allow this violation. Do we have to provide an answer?
If an HOA rule is being violated, the board is duty bound to enforce. Further, the board should not ignore the violation because only one owner happens to be complaining.
The issue is whether an HOA rule has been violated. If so, enforcement measures should be undertaken by the board in accordance with a uniform protocol. As with any enforcement measures, though, I recommend that the board consult with an attorney experienced in the community association field prior to implementing its enforcement protocol.
Nelson Mullins Patrick O’Dea BNC Bank Corporate Center, Suite 300 Myrtle Beach SC 29577 (843) 946-5631 patrick.odea@nelsonmullins.com http://www.nelsonmullins.com
Legally, the Board can refrain from enforcing a violation of the HOA rules in its business judgment, without providing a reason to other owners who are complaining. The complaining owner is not without remedies; he would have the right to take independent legal action against the violator, since he is a beneficiary of the Declaration of Covenants and Restrictions under which the rule was promulgated. However, a complete refusal to explain the Board’s decision could invite the complainant to name the Association as a defendant in any action as well as the violator, or could cause political damage to the Board if it looks like the Board is favoring one owner over the others. Either result is damaging to the Association’s stability. So I would recommend that the Board consider at least a general explanation to the complainant, stating that it has considered numerous factors, decided not to take legal action at this time, and remind the complainant that he has the right to act on his own if he wishes.
60 East 42nd Street 46th floor New York, NY 10165 212-688-2400 X4102
Very often, seemingly small changes in the facts of a matter can make a significant difference in the correct legal advice. For instance, your question indicates that a resident is complaining about a violation of a “rule.” It makes a difference whether the rule is a restriction contained in your HOA’s declaration, or a rule that the governing board adopted. Generally, the board has a higher duty to enforce the declaration’s restrictions, then it does in connection with its own rules, with respect to which it has greater flexibility.
Further, you indicate that board would prefer not to aggressively pursue the rule violation because of a personal situation impacting the owner against whom a violation is alleged and you prefer not to divulge the reason for the board’s inaction to the complaining owner. The nature of the personal situation may be meaningful in providing an answer to your inquiry. For example, assuming, hypothetically, the rule in question involves a restriction against creating excessive noise, but the resident making the noise needs to have temporary medical equipment that is the cause of the noise. Depending on all the facts, it may be that the person causing the noise is entitled to an accommodation under the Federal Fair Housing Act. In such a case the board would be obligated to allow an accommodation in the enforcement of the restriction if it is “reasonable” to do so. Further, the law concerning making accommodations to people who are disabled prohibits the disclosure of confidential information concerning the disability – although it doesn’t prohibit the board from stating that it is obligated to make an accommodation because there is a claim of disability, without providing details.
Another example might be that the HOA has a restriction against conducting any business from a home. Perhaps the owner is out of work and is a professional who can’t afford to rent an office. Therefore, the owner opens her business from her home. As a result, that owner starts seeing clients from her home and has a secretary working from the house. In that case, there is no law that protects that activity and the board has a duty to take reasonable action to enforce the restrictions. In order to avoid a costly legal dispute with the owner conducting the business, the board may lawfully provide the offending owner with a reasonably short period of time – say, for instance, 30 days – thereby giving that owner an opportunity to earn some income but also require that she find another location for his or her business.
While the board may be empathetic to an owner facing personal difficulties, it still has a duty to enforce the restrictions contained in a declaration. The law doesn’t mandate that a board show no humanity to their fellow residents by temporarily allowing a violation, particularly if the violation is technical in nature and does not cause any harm to the welfare of the other residents. Ultimately, however, the board has the duty to enforce the use restrictions, particularly where another owner is validly complaining about a violation and no law protects the violating owner. Because these situations can be nuanced and the correct answer depends on an analysis of all of the facts, we urge you to discuss this with an attorney who specializes in community association law.
J. DavidRamsey Shareholder
Member, College of Community Association Lawyers
Becker & Poliakoff
1776 on the Green
67 Park Place, Suite 702
Morristown, NJ 07960
Tel: 973.898.6502
Fax: 973.898.6506
I would suggest that the real question is not whether the Board must provide a reason to the complaining owner as to non-enforcement, but why the Board has chosen to ignore what it admits is a violation. From the meager facts provided, it appears the Board is in breach of its fiduciary duty in allowing a known violation to go unchecked and uncured. The Board can find itself on the wrong end of a lawsuit seeking to enforce the rule and having to pay the complainant’s attorneys’ fees and costs relative to the suit. Also, if in the future the HOA seeks to enforce the rule against any other owner, that owner will have as ammunition in its defense the fact that the Board did not enforce the rule in this situation and thus is being discriminatory and unevenly enforcing rules – essentially the rule will be judicially thrown out.
Sara A. Austin Austin Law Firm LLC 226 E. Market St. York, PA 17403 717.846.2246 phone 717.846.2248 fax saustin@austinlawllc.com
Enforcement of the covenants is an obligation of the Board, but the method of enforcement is at its discretion. IC 32-25.5-3-3 requires an Association to make all records regarding an Owner’s property available to that owner, but an Association does not have to make records on another Owner’s property available. Thus the Board does not have to explain its reasoning as to how it chooses to enforce the covenants on one homeowner to another.
Many covenants also allow an individual owner to enforce the covenants against a neighbor. If your covenants allow that, the one neighbor could provide the dispute resolution notices to the other neighbor and then sue and if the covenants provide for it, collect his attorneys fees if he is successful in the enforcement. The language of the Declaration should always be reviewed for alternative remedies.
Thrasher Buschmann & Voelkel PC Stephen Buschmann 151 N. Delaware St. Suite 1900 Indianapolis IN 46204-2505 (317) 686-4773 buschmann@indiana-attorneys.com