First, you need to find out who will be the hearing panel. So grab your declaration and bylaws and read them to see if they address this issue. Next check your articles of incorporation, rules, and covenant enforcement policy. Hopefully at least one of the documents sets out who will be the decision makers for the hearing and if more then one document discusses this, hopefully they all match. If all documents are silent, the board of directors may act as the decision maker. If the documents contradict one another, you should consult legal counsel as to the best way to proceed.
Second, review the documents to determine the specifics of the notice requirements. A hearing on a covenant violation or an architectural review request may be held as part of the monthly board meeting or separately as schedules of the board members or decision makers will allow or as otherwise dictated by the documents. Make sure the notice of hearing spells out when and where the hearing will be, and what the hearing is about. Don’t forget to send a copy of that notice to the parties who filed the initial complaint and ask that they attend as well.
Third, make sure you have copies of all documents that have come in to the association about the alleged violation. Get a copy of any written complaints, photos, and emails and responses from the homeowner accused of the violation. Have them all together and ready for the decision makers to review.
Fourth, review the governing documents to determine if there are any specific requirements for the hearing. State Law provides that the hearing may be informal but your governing documents may set out a specific and more rigid format for the hearing. If any of the documents spell out a specific procedure, you will need to follow it.
Now we get to the hearing. First and foremost do not forget that the person in front of you is a neighbor. He lives in your community. While it is important to enforce your covenants and rules, you can do so with respect for the person in front of you. Remind everyone of the requirement of civility before you start. Also, keep the following in mind when it comes to hearings:
- Do you have a quorum of decision makers? Whether it is the design review committee or the board of directors or a tribunal, make sure you have quorum.
- Are all of the decision makers impartial as required by State Law? If one of your decision makers is the complaining party or has a financial interest such person needs to recuse himself.
- Is the homeowner present? If not, look for any submission of the homeowner to present to the decision makers for their review.
- Remember, the hearing is to determine if a violation occurred. To start the hearing, advise everyone present what the alleged violation is, then present the information from the submitted complaints. After this, you may ask the alleged violator if he/she wishes to present his/her side of the story. If after hearing from the homeowner, there are questions for either the complainant or the homeowner accused of the violation, ask them.
- If the homeowner simply requests more time to fix the violation, verify that the homeowner agrees there is a violation. Then discuss the specifics of the request.
- Make a decision. Once all the information has been presented, discuss the issues and make a decision. The decision need not be made right at the hearing, but your governing documents may require a decision be made within a particular time frame after the hearing. The Board does have the right to make the decision in executive session.
Can the homeowner appeal? Only if the governing documents allow for this, or if the Executive Board was not the hearing panel. Many governing documents do not set forth any right of appeal, so don’t assume such right exists.
Be willing to get creative so long as the end result is in the best interest of the community and the homeowner and complaining party. If a homeowner is not in violation of the covenants but there are clearly issues between the complaining party and the homeowner, offer mediation to resolve the issues. If a homeowner is in violation, impose the fine (making sure that the fine amount is in compliance with the governing documents) but be willing to consider a waiver of the fine if the violation is later corrected.
By: Debra J. Oppenheimer