Most of what we read about homeowner associations in the newspapers is negative and sensationalistic. We all remember the articles about the poor homeowner who is picked on by his association. The homeowner who doesn’t feel he is being treated fairly when his architectural application is turned down or the owner who doesn’t like the way the rules are being enforced or not enforced. Certainly there are exceptions to the norm and there are Boards who act irresponsibly, but oftentimes the reason homeowners feel they have been treated unfairly by their association, is because they failed to understand the policies and procedures. Living in an association means being a good neighbor and making compromises and considerations for the good of the whole.
Reasonableness is a big word that is used when judging whether an association decision or a resident action is wrong. Using common sense and considering what the ramifications of your actions are is sometimes overlooked in our rush to solve conflicts. The Courts in judging homeowners and their associations often refers to whether or not the action taken or not taken was reasonable. Boards should always keep that in mind when they are establishing or revising the rules that the residents must follow.
Rules – The Board has the right and duty to establish the rules but recent changes in the laws governing the rules revised by the association, must first be accepted by the homeowners. If a certain number of homeowners object to the way a rule is written then the Board must meet to listen and revise the rule until it is acceptable or submit the rule to the membership for a vote. This only applies to changes in the rules. Boards may also make emergency rule changes with no notice if there is an immediate threat to public health or safety or an imminent risk of economic loss to the association.
Who Enforces the Rules? The Board writes the rules and then enforces the rules. The rules must be reasonable and within the guidelines of the CC&R’s. However, most of us receive letters reminding us of rule violations from the Management Company. Why is that? The Board has authorized the Management Company to check for rule violations, accept written complaints about rule violations, send letters about the rule violations and keep track of compliance with violation logs. If rule violators ignore the letters then, hearings are scheduled and owners are invited to attend and defend or explain their actions before the Board. Owners that ignore their opportunity to appear before the Board and the violation continues will oftentimes be assessed a fine which is added to their homeowner assessment account. Violators that continue to ignore the Board’s decision will then risk legal action. The cost of litigation is very expensive for everyone. I often think that owners that sue their association or get sued by their association forget that they are suing themselves. Everyone in the association shares in the cost of the litigation.
Why does solving a rule violation take so long? Everything seems to take too long in association governance. The Board is all volunteers and they typically meet once a month to make decisions in front of the association members. If a rule violator is ignorant of the power of the association or just doesn’t care, the conclusion of the situation can be very time consuming and costly. Other owners, who observe that the rule violation continues, will sometimes complain that the Board or Management is doing nothing to resolve the infraction when indeed they are doing their best. Court time is precious and very overburdened so it is best to try and settle homeowner disputes long before it gets into the courtroom.
Behind Closed Doors! – A process that is closely associated with litigation and homeowner violations or homeowner delinquencies is often discussed in private with only the Board, the persons involved and maybe attorneys. This is called an Executive Session of the Board. Management attends to take the minutes. This adjournment to a private meeting is sometimes mysterious to those in the audience observing the Board meeting but it is understandable and necessary to not embarrass and discuss personal issues before an audience. The Civil Code governing Common Interest Developments allows the Board to adjourn into Executive Session to discuss litigation, formation of contracts with third parties, member discipline, personnel matters, and member delinquencies. The matters discussed in Executive Session should be generally noted in the minutes of the meeting immediately following the adjournment of the Executive Session.
Living in an association usually results in higher property values. We all are reminded to maintain our yards, our driveways our pets and our children. We all must agree that following rules that provide a cleaner, more maintained community will be better for all of us in the long run.