HOA ENFORCEMENT GUIDELINES

HOA ENFORCEMENT GUIDELINES  

MGM Association Management’s goal is to support an HOA Board of Directors to maintain a functioning homeowner’s association and to govern within the guidelines of the written covenants, conditions, and restrictions, i.e., CC&Rs.

We are seeing more and more litigation causing frustration and unneeded expense for associations and owners alike.  It is MGM Management’s desire to assist and to advise in ways that will limit exposure to litigation, while still maintaining the core values written in the CC&Rs.

HOA Association CC&Rs are a contract.  With any contract, it is enforceable in court.  If the need arises to litigate in front of a judge, the contract should speak for itself in clear language.  That is, if the CC&Rs state a requirement, then the requirement should be upheld by each owner.

Don’t interpret beyond what is written.  If the CC&Rs are not clear on a topic, then seek the membership for clarification through amendments.  Not everyone interprets the verbiage in the CC&Rs similarly.  So, if it is not written clearly, clean it up through an amendment.  The membership would benefit much more than going out on a tangent, bringing someone to court, and then, finding the judge does not agree with the interpretation.  This costs the association an unplanned expense and creates discontent among the owners.

Stick to the clear verbiage.  If the CC&Rs state a requirement, then enforce it.  One of the frequent causes for litigation is when a Board self-interprets the CC&Rs and fails to stay within the bounds of the written document.  The result of this may cause undo notifications to owners pertaining to something the CC&Rs do not actually require.  This is one of the more common causes for litigation.  A professional management group, such as MGM Management, should advise a Board if the demands or notifications are pushing the limits of the CC&Rs.

Be accommodating and understanding when needed.  Sometimes an owner just needs a little time to get something done.  The quick letter to the residence reminding them of a violation may not get the response the Board desired pending the verbiage of the letter. Sometimes that table or pile of rocks in the driveway are short-lived that a letter is really not warranted, because the owner already knows it needs to be moved or has a plan to remove it.  Give the owner the benefit of the doubt and be supportive.

This is a community; not a police state.  The HOA should avoid spending enormous amounts of time seeking out problems.  Rather, most of the problems find themselves being presented to the Board from complaints of owners.  If the Board sees an obvious problem that needs immediate attention, it should be addressed immediately.  A management service’s role is to bring violations to the Board through inspections outlined by the Board.  Between owner complaints and subdivision inspections, there should be plenty for the Board to work through based on what the CC&Rs state.  The Board should have no need to go out policing the community.  The nature of an inspection should be one of finding the obvious violations that are CLEARLY written in the CC&Rs.  They should not be acting as a police officer performing investigations on every property to find errors at each stop.  This kind of process will create a culture of discontentment among neighbors and ultimately cause the problems we all want to avoid.

Sometimes you just need to litigate to gain compliance.  When “That Person” who thinks the rules are for everyone else shows up in your association and refuses to comply with the CC&Rs, there is no need to let this process go on for long periods of time.  Once the association determines there is no plan by the owner to comply with the CC&Rs, it becomes time to litigate.  A professional management service will advise the Board to facilitate the preparation of the process and to get this situation to a qualified attorney.  This process should be direct and swift once the Board has determined the problem needs litigation.  Do not let this situation linger in the association, as it will feed dissatisfaction among the owners.

Are the CCRs worth the paper they are written on?  Yes, very much so.  They are a contract, and all contracts are upheld in a court of law.  Associations should always expect from the membership that which is clearly written in the CC&Rs of the membership.  Don’t be the association that wonders out of the CC&Rs into the arena of “Interpretation.”

Look to mediation to resolve disputes.  For the owner who feels the association has stepped out of bounds, a good management team, like MGM, should assist you in getting a hearing or meeting with the Board to resolve the issue.  This is not to be understood as a meeting where an owner has a chance to give the Board a piece of his mind, rather, a meeting to review the CC&Rs and the expectations written in the CC&Rs to come to a resolution to avoid litigation.

Recap:

• Read your CC&Rs
• Put your stuff away
• Keep your yard looking presentable.

If you are still confused, reach out and contact your Board of Directors to get clarification.  They are there to help their neighborhoods.

Submitted by:

Mike Madson – MGM Association Management, www.gomgm.com – POB 1246 Meridian ID 83680 (208) 846-9189

Resources:

http://boisestatepublicradio.org/post/new-idaho-law-aims-curb-power-homeowners-associations

http://www.caionline.org/events/lawsem/2013%20Law%20Sem%20Presentations/8%20Case%20Law%20Update.pdf .

http://www.leagle.com/decision/In%20NECO%2020120803281

Sun Harbor Homeowners’ Association, Inc. v. Bonura, 2012 W L 2120923 (Fla.App. 2012).