One possible source of confusion for boards or managers may be the existence of a typical covenant provision stating something like: “No unlawful use shall be permitted within the community. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the community shall be observed.” It would be an overly broad interpretation of this provision to conclude that it gives the association the ability to enforce the government’s laws and regulations, and to take police-like action in such enforcement. The safer interpretation of such a provision would be that the association and its board have a duty to act appropriately in the case where they have knowledge that an owner is violating the law. This appropriate action would be to notify the proper authorities of the incident, or ongoing incidents and allow them to undertake investigation and proper action. Should it be apparent that the owner is violating the law; from the association’s standpoint such violation should be treated as a violation of this particular covenant provision. Thus, all applicable covenant violation enforcement techniques and remedies would come into play (i.e. violation notices, fines, injunctions, etc.). Finally, if criminal activity is apparent, the association would be advised to make its owners aware of any potential dangers or risks so that they may act appropriately to safeguard themselves and their homes.
To boil it down, our advice is to let the police do its job. If a complaint or suspicions regarding potential criminal activity within a unit are voiced to you as a board member or manager, a certain amount of preliminary investigation may be appropriate. Perhaps make a general phone call to the unit to see if anyone inside is in distress, or ask the neighbors for corroboration. At the point where suspicions are reasonably confirmed, call in the professionals. Call the police. Call an ambulance. Once the incident is over, or under the control of the property authorities, ask for a copy of any incident reports for your records.
By: Eric R. McLennan