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HOA’s rules aren’t being enforced

newsQ: We live in a Charlotte townhome community. In 2010, the HOA board revised the community’s existing “Rules & Regulations,” taking special care not to be in conflict with the decade-old Covenants, Conditions and Restrictions (CCRs). Prior to implementation, all owners signed for the hand-delivered, revised Rules & Regulations booklet (including a notice of the rule changes) along with a letter announcing a monthlong transition period to the new rules.

It has been months since the transition period has expired, and one owner has refused to comply with the revised rules and has threatened legal action, stating that he is only obliged to follow the rules that were in effect when he moved in. The board’s reaction has been to avoid confrontation and not enforce the revised rules. Are the new rules enforceable, regardless of when the owners moved in?

Both the N.C. Planned Community Act and Condominium Act give HOA boards the authority to adopt rules and regulations affecting the use and maintenance of common elements and areas.

In general, HOA boards do not have the authority to adopt rules and regulations governing the use of, or an owner’s conduct in, his/her lot or condominium, unless the Declaration specifically grants the board that right.

The fact that rules or regulations were adopted or amended by the board after an owner purchased the home does not make them any less enforceable against that owner, assuming that the board did not exceed its authority with the rules it adopted.

HOA boards really have only two functions: to maintain the common areas and elements, and to enforce the provisions of the Declaration, bylaws and rules and regulations. Boards that fail to fulfill this fiduciary duty owed to the members of the HOA risk exposing themselves to lawsuits for breach of fiduciary duty.

A board has multiple tools to enforce the governing documents, including the imposition of fines and the suspension of community privileges (pool, clubhouse) and services (water, cable TV).

As a last resort, an HOA board may file a lawsuit against a noncompliant owner to enforce the community’s rules and regulations.

Before a board undertakes the process for levying fines or suspending privileges or services, its members should make sure they have a solid understanding of the procedures for such actions, all of which are dictated by N.C. law.

Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley.
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“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer

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