RULE ENFORCEMENT IS THE MOST DIFFICULT ASPECT OF A HOMEOWNER’S ASSOCIATION

RULE ENFORCEMENT IS THE MOST DIFFICULT ASPECT OF A HOMEOWNER’S ASSOCIATION

Your Homeowner’s Association Board has a duty to reasonably enforce the covenants and rules, and to avoid risking liability to the Board, its committee members, or to the entire association. At the same time, Board members are residents of the association, live there, and are friends with many within their association. Unfortunately, enforcing those rules may result in personal attacks, disharmony, and polarization. As a Board member, this aspect of governing can either disenfranchise your association or bring it together.

Enforcing the association’s rules can cause destructive emotional conflicts, but understanding the two most important, fundamental, undercurrents of homeownership are necessary. They are:

It is my land, and nobody can tell me how I can use it.

The use of one’s land affects the neighbor’s rights and the rights of subsequent purchasers.

Violators can become very emotional and passionate about their beliefs and can become unreasonable about the enforcement action taken. Moreover, compliant neighbors can become emotional about the lack of enforcement taken.

Why Have Rules

To protect property values and the assets of the community

Required by law and are agreed to when purchasing a property within an association

Legal Obligation: A Board and its individual members are considered agents of a corporation and are liable for the actions of their nonprofit organization; in addition, the entire association may have to bear the burden of any financial penalty imposed in the form of increased assessments

To avoid court rulings against the association and expensive legal fees for poorly developed or enforced rules

To promote community harmony and to facilitate a compliant community culture.

Violators can be lumped into four categories:

Uninformed homeowners: Are frequently first-time homebuyers who are not familiar with the HOA concept, to experienced, but apathetic homeowners, to culturally diverse communities where knowledge and language barriers compound issues. Use educational opportunities such as a welcoming brochure, emails, and a website to inform

Procrastinators: Homeowners who delay taking care of the concerns or never get around to resolving the issue. Use enforcement procedures as outlined in your covenants and be persistent.

Hardship cases: These violators are often willing to remedy the violation when they understand the escalating costs of enforcement and that the association may be willing to waive the fines for compliance and/or arrange a payment plan. With reasonable notification that results in no action, it may be possible that there are other circumstances beyond the HOA violation.

Defiant homeowners: A threatening initial communication will often result in a defensive and threatening response. Attempt conflict negotiation and be diplomatic always. Follow enforcement procedures and try to prevent escalation. If your HOA has an association manager, ask them to mediate the situation.

In all situations, the association should open the door to establish communications and express a desire to work together to address the issue. The result should be to foster understanding so that the association’s culture is harmonic.

As a professional association manager, MGM has had its share of confrontations. MGM has chaired, negotiated, and refereed numerous concerns from the Board’s perspective to confrontations between neighbors. In almost all cases, communication is the primary skill required to resolve confrontations. For more information, contact our office at (208) 846-9189 or visit www.gomgm.com.

Sunday, April 30, 2017

Be prepared to answer the question “Why?” if you want to defuse conflict in your community

“Why can’t we use the pool after dusk?” the wiry man at the microphone bellowed. “I’ve been a swimmer my whole life and I need to use the pool to stay in shape” and with that statement, he pointed to his trim waistline to indicate how well his exercise regimen had been working.

I waited along with the audience to see how the President who was chairing the meeting would respond. Instead of discussing the safety concerns she had articulated to me earlier regarding night-time swimming in an unlit pool as well as a desire to save money by not having to heat the pool after hours, she chose, instead, to brush the matter off with a “because we said so” response and called for the next person who had a question to come forward. The swimmer’s face reddened and he immediately voiced his outrage, launching into a full-scale denouncement of “this board’s policies and arbitrary decisions.”

I knew that this would not be the last the board would hear from this owner; likely his affront at the response would find other outlets, including repeated document inspection requests and perhaps even a recall initiative at some point. This was my third Board meeting that week and they all had involved, at some point, association members questioning the wisdom of one or more board rules. Experience has taught that whenever you tell people what they must do or what they must refrain from doing, you will almost certainly be met with the question, “why?” How a board member or manager responds to these questions can either inflame the situation or defuse it.

With the recent United Airlines kerfuffle still in the news, more people have been discussing the right and wrong ways to enforce policies. Do you use a carrot, a stick, or an alternate between the two? When a passenger was forcibly pulled off one of United’s planes, there were differing opinions about which party bore the greatest blame. Some blamed Dr. Dao for failing to cooperate when the police arrived while others saw an abuse of power and poor decision making on the airline’s part in ejecting a customer who had paid for a seat. Lastly, the initial statements made by the company’s CEO that he regretted having to “re-accommodate” a customer were seen as downplaying the aggressive actions taken and only served to inflame an already sensitive situation.

When it comes to association rules and regulations, many boards prefer a stick and a big one at that. My job as association counsel is to ensure that boards can successfully enforce the rules they pass, otherwise, they risk losing both credibility and control. A successful rule protocol has to (a) identify a real not imaginary problem (b) craft a reasonable rule to solve that problem and (c) communicate (a) and (b) to the individuals against whom the rules will be imposed.

If your board has a rule that requires head-in parking in the association parking lot, you might want to explain in your rules booklet and/or at the meeting where you will adopt that rule that you are doing so to avoid visibility issues and potential accidents as tail-in parking impede the adjacent walkway. If another rule provides that renovation work can only be done within the units during certain times and months, you can improve compliance by including an explanation that the times and dates were chosen to minimize inconvenience to other residents when the community is most heavily occupied. If an owner understands that enforcement of the rule can also benefit them when a neighbor or other occupant violates the same you might just have the “aha” moment which encourages compliance. Rules that are seen as petty or unnecessary are the most likely to result in your owners ignoring or openly defying the same.

Volunteer boards can increase the likelihood of their members’ voluntary compliance if they let them know why they have made certain decisions. Sadly, in some instances, a reasonable explanation will not satisfy certain members who cannot be assuaged regardless of the message conveyed. In those instances, enforcing rules violations can include levying fines, suspending use rights, denying lease approvals, and, in the most egregious cases, pursuing arbitration and/or injunctive relief in court. However, don’t assume that the rationale for even the most basic rules will be understood by all your members and, without understanding, you cannot count on voluntary and consistent compliance.

When you explain the rationale for a rule, you are showing respect. For most people that will be enough as it allows them to comply while saving face.

As for the man who lamented his inability to engage in his nocturnal swimming habit, he joined the board a few years later and became one of the more vociferous proponents of that rule when he bore the responsibility of being a director.

Posted by Donna DiMaggio Berger at 11:48 AM

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Labels: conflict; rules, united airlines

A Focus on Covenant Enforcement

HOA-USA Staff Writer

A Focus on Covenant Enforcement

In practically every discussion of topics related to HOA governance, it is important to remember that one size does not fit all. Consider how the following factors can define the simplicity or complexity of covenant enforcement:

State laws vary widely such as board authority versus membership votes to adopt or amend governing documents, rules and resolutions, requirements for hearings, and limitations on fines.
Covenant/rule violations are less personal when consistently enforced by a management company based on written procedures and policies adopted by the board. Enforcement may be interpreted more personally for self-managed boards.
Covenant/rule enforcement is significantly more challenging when there is a legacy of non-enforcement or selective enforcement.
Issues vary by type of association. Condominiums and townhomes deal frequently with issues of noise and parking. Single-family associations on the other hand deal more frequently with home additions, fences, landscaping, and playground equipment.

Covenant/Rule enforcement is one of the most difficult aspects of running a homeowner’s association.

The Board has a duty to reasonably enforce the covenants and rules, and avoid risking liability to the board, committee members, or to the association. At the same time, board members are residents with neighbors and friends in the community. Covenant enforcement can result in personal attacks, disharmony, and polarization.

Enforcing the association’s covenants/rules can cause destructive emotional conflicts in associations. Two fundamental undercurrents collide:

It is my land, and nobody can tell me how I can use it.
The use of one’s land affects the neighbor’s rights and the rights of subsequent purchasers.

Violators can become emotional about the enforcement action taken. Neighbors can become emotional about a lack of enforcement action taken.

Why Have Rules

Protect the property values and assets of the community.
Required by the governing documents.
Legal Obligation – A board and its individual members are considered agents of a corporation and are liable for the actions of a nonprofit organization.
Avoid court rulings against the association and expensive legal fees for poorly developed or enforced rules.
Promote community harmony.

Who Breaks the Rules? Violators can be lumped into four categories:

Uninformed homeowners – This results frequently with first-time homebuyers who are not familiar with the HOA concept, to experienced but apathetic homeowners, to culturally diverse communities where knowledge and language barriers compound issues. Use educational opportunities such as a welcoming brochure, email, and website to inform.
Procrastinators – Use procedure and persistence.
Hardship cases – often willing to remedy the violation when they understand the escalating costs of enforcement and that the associations may be willing to waive the fines for compliance and/or arrange a payment plan.
Defiant homeowners – a threatening initial communication will often result in a defensive and threatening response. Do not confront. Follow the procedure and try to prevent escalation. Be prepared to consult with the association’s attorney.

In all situations, the association should open the door to establishing communications and expressing a desire to work together to address the issue.

Two Types of Rules

Architectural Guidelines typically apply to the exterior appearance of the property. Some examples:

Fences
Decks & Patios
Sheds and Outbuildings
Boat & RV Parking
Mailboxes
Exterior Colors
Building Materials
Pools
Playground Equipment
Landscaping

Rules typically apply to issues where the behavior of one resident, tenant, or visitor has an adverse impact on a neighbor. Some examples:

Use of Common Areas
Pet Restrictions
Parking
Solicitation & Yard Sales
Garbage & Trash
Noise
Leasing Restrictions
Age Restrictive
Single Family Use
Residential Use/Business Use

Inspections

Without regular inspections, covenant violations often go undetected which makes enforcement more difficult. Sometimes delivery of building materials and knowing that an architectural review application has not been approved is sufficient to inquire. Sometimes the scope of work is expanded without approval. The board, architectural review committee, and management company should watch for any new construction activity and respond immediately. Emotions will be elevated if a homeowner is advised that a project cannot proceed and may have to stop completely. In extreme situations, it may be necessary for the association’s attorney to file an injunction stopping work. The board should also know its authority to enter private property in order to inspect.

Sources of Authority

As a Board Member or Director of a homeowner association, you have certain powers, duties, and authority that are required in most cases by federal and state laws; local ordinances, and association documents. This includes covenant and rules enforcement.

Liability of Corporate Boards of Directors

What liability does corporation board of directors’ members have in their board positions? Not as much as you might expect. Corporate board members have a good deal of latitude within the scope of their duties as corporate board members. Board members must be free to act in the interest of the shareholders in order to run the association in the best way they see fit. That said, most boards purchase Directors and Officers insurance (D&O) to protect themselves and the association against lawsuits.

Boards should not become involved in neighbor versus neighbor disputes. Whenever possible, the Board should refer enforcement of certain covenant violations to local or state authorities. Municipal code enforcement of abandoned cars and animal control are two examples.

Avoiding Lawsuits & Defenses for Failure to Enforce the Covenants/Rules

Ultimately, an association’s approach to covenant enforcement is critical. The association should ensure that it timely, consistently, and uniformly enforces its documents, including the covenants and restrictions. Associations should understand the failure to timely, uniformly, and consistently enforce the documents, subject the association to defenses that could preclude enforcement, both with respect to the individual case at hand as well as future cases. As such, an association that postpones or allows deviations from the requirements of its documents is putting itself and its future enforcement actions in jeopardy. Many associations fail to realize that significant defenses can arise by virtue of their failure to enforce their documents timely, uniformly, and consistently. Such defenses include, but are not necessarily limited to the following:

Laches – which in layman terms means simply by virtue of the passage of time, the association’s rights may become stale and unenforceable (i.e., if the association fails to timely enforce a provision, it may lose its right to enforce it);
Selective Enforcement – which in layman terms means the association should be precluded from enforcing against Mr. Jones that which it does not enforce against Mr. Smith.
Waiver – which in layman terms means relinquishment of a known right (i.e., the association must have a right and knowingly and voluntarily relinquish the right)
Estoppel – which in layman terms means in fairness, inequity, the association should be precluded from enforcing a provision by virtue of some previous action or potentially some inaction.

Check Your Documents for a No Waiver Clause

Many association documents have language that states in no event shall the Association’s failure to enforce any covenant, restriction, or rule provided for in the Declaration, the Bylaws or the Rules constitute a waiver of the Association’s right to later enforce such provision or any other covenant, restriction or rule.

Other Enforcement Measures

Suspension of Voting Rights
suspension of Use of Recreational Facilities and Common Areas

Use of Government Agencies to Enforce

Health Department for multiple families in a single unit
Inspections & Zoning for fence or sheds, setback requirements, commercial use of residences, abandoned vehicles, building permits
Police for traffic on public streets and possibly towing
Fire Department for parking that interferes with fire lanes; also, hazardous materials
Animal Control for lease laws, waste removal, number of pets, nuisance, dangerous pets, exotic animals

Avoiding Covenant/Rule Violations

Education and Communication is Key
New Member Welcome Package
Email Reminders
Websites
Reminder enclosure in mailed annual meeting notice and assessment increase notice.
Lease Requirements & Educating Tenants
Review and amendment of governing documents for outdated and conflicting provisions.

Solutions for Associations That Have Failed to Enforce the Covenants/Rules

A common scenario is a self-managed association that has over time neglected to set rules and consistently and effectively enforce them. The appearance of the community has crossed a ‘threshold point’ where residents frequently complain. The association may be operating without an active board. Typically, a few residents are encouraged to run for office and a new board is elected with a mandate to ‘straighten things out”. This is a difficult process; however, it only becomes more difficult if unaddressed over time.

Suggestions:

Conduct an informal inspection of the community and make a list of violations.
Review the association’s documents with particular attention to approved rules and policies that have been previously distributed to residents.
Consult with an HOA attorney regarding laws that may have changed and the risks/rewards and costs of enforcement. For example, a board or architectural review committee that failed to respond to a written request in a prescribed time frame may be unable to enforce the covenant/rule.
Inform the residents with a Notice that the Board is Reviving Overlooked Rules

The Notice should address the following:

The value to the community of having rules
That previously overlooked rules will once again be enforced in a fair and consistent manner.
List those rules that will be enforced and provide copies of rules that have been previously adopted.
That rules will generally not be enforced retroactively. Consult with an attorney regarding retroactive enforcement.
Provide reasonable grace periods based on the type of violation for residents to comply with the revised rules.

Summary of Recommendations

Educate residents with periodic email reminders.
Conduct regular inspections.
Review the governing documents with regard to architectural control.
The association should maintain a book of adopted resolutions and rules that are supported by meeting minutes.
Utilize the resources of a management company and or attorney who is experienced in homeowner association laws for your state.
Associations should adopt a specific covenant enforcement procedure via a resolution.
Associations, using the adopted covenant enforcement procedure, should uniformly, timely and consistently enforce the covenants/rules regardless of the violation and regardless of the violator.
Adopt resolutions/rules where needed that specify specific policies for covenant/rule enforcement.
Maintain D & O Insurance and consult with your agent regarding exposure to ‘exclusions’.

This article and many others can be found in our state-specific Resource Centers. Simply visit our homepage at www.HOA-USA.com, choose your state from the US map, then choose “Articles” in our Resource Center.

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A PEACEABLE KINGDOM

Rules enforcement is a necessary part of association life. That doesn’t mean you can’t be nice about it.

A community association can differ from a traditional non-association neighborhood in many ways: There’s a quasi-government that makes sure the trash is picked up and the snow is plowed. There are mandatory member dues. There might be a more centralized, coherent sense of community.

And there are rules. When homeowners buy into a community association, they’re agreeing to abide by certain restrictions and regulations.

This doesn’t always go over well. For most people, their home is not only their single most important investment, it’s also their castle. In an association, the board of directors is charged with the perplexing dilemma of running the community while at the same time respecting these deeply ingrained feelings and enabling freedom of personal expression.

How does the boardwalk this line? Through a carefully reasoned enforcement process.

KNOWING THE RULES

Enforcement takes place over three basic categories: covenants, conditions, and restrictions (CC&Rs); rules and regulations; and architectural guidelines. They may seem redundant, but each category has its own area of influence.

CC&Rs are recorded documents whose provisions are inherently non-negotiable. Often crafted by the developer, they set out, in broad language, the basics of association operation and governance.

Rules and regulations are adopted by the board and may be modified, as the board deems appropriate, without a member vote. They are much more specific than the CC&Rs. An example might be pool-facility restrictions that set the hours of operation, require kids to be supervised, and so on.

Architectural guidelines are generally created by the builder when the community is in its infancy and adopted by a builder-appointed board. They may be modified by a vote of future boards anytime thereafter. Architectural guidelines regulate how the community looks and is constructed, including such details as wall height within each lot, permissible landscaping, approved exterior paint colors, and location of any improvements installed in the back yard. The level of detail varies in each community and can depend on the mindset of the homeowners.

Together these three governance documents not only define the rules but also dictate how those rules will be enforced. Thus, everything you do–from notification of a violation to issuing fines–should be established within the parameters of these documents. Your decisions should also be informed by the idea of being reasonable–of softening attitudes out of respect for the emotional attachment people feel for their homes. If an appeal to common decency isn’t enough, remember that the standard of reason will come up in a court of law if a violation results in a lawsuit. So oftentimes, being reasonable is the right and legal thing to do.

USING THE FORCE

Once you have a sense of the rules, think about how you’re going to enforce them. What will be your enforcement philosophy? Zero tolerance? Don’t ask, don’t tell? Community self-policing? Each has its selling points as well as its drawbacks. So consider a fluid, flexible, highly adaptive combination that at its core is reasonable.

Committee. The cornerstone of a sound enforcement policy is an enforcement committee, which usually consists of three to five homeowners who inspect the community for infractions. Having homeowners involved in the process allows for different perspectives from people who live in the community and experience it first-hand. They may choose not to enforce some regulations or suggest that the board modify others to fit the association’s needs. The manager consults with the committee and acts on the board’s directives because final authority always lies with the board. In fact, a board member should serve as the enforcement committee chair to ensure that the board’s vision is effectively executed.

CC&Rs. Once your enforcement committee is up and running, perhaps its most formidable job will be tackling the most persistent CC&R violations, which tend to be appearance issues like un-mowed grass and chipped house paint. These more intractable CC&R cases might require a special, more regimented touch. Depending on your administrative structure, consider having a manager and a member of the enforcement committee tour the entire community once a week to check for these violations. Once you’ve identified a violation, with the approval of the board, send a courtesy notice to the homeowner. A second notice might be necessary, after which you should notify the homeowner that an enforcement hearing has been scheduled.

Notification. Smaller infractions can be addressed informally. These can include trash cans being left in the street after the designated pick-up date; a portable basketball hoop left unused at the end of the driveway after the game has ended; incessantly barking dogs; and myriad other possibilities. These cases usually warrant no more than a cordial phone call or personal visit from the manager–which has the double advantage of alerting a resident to a problem and impressing him or her with your kind, low-key, personal communication. Many times, this is enough to remedy the situation. To be on the safe side, however, document the date, time, and content of the conversation, so that, should the problem persist, you’ve established a paper trail.

If the violation is more serious, send the homeowner a courtesy notification identifying the problem and offering a deadline date for compliance or hearing attendance. Keep the tone of this first letter friendly but businesslike–and completely non-confrontational. If the homeowner doesn’t respond, don’t panic or retaliate. Send a second letter, this one more formal, again detailing the violation and announcing that failure to comply could result in an enforcement hearing. If a third letter is necessary, use it to set the hearing date. Don’t be surprised–and don’t take it personally–if it takes three letters to produce compliance.

Hearing. If a violation remains outstanding, schedule a hearing and send the homeowner a notice at least 10 days in advance, identifying the infraction and establishing the hearing date and location. An enforcement hearing is usually held in a community center (or some other common or neutral area) and conducted by the board. The hearing gives the homeowner an opportunity to respond to the violation and talk with board members face-to-face. These meetings usually foster an atmosphere of mediation in which the homeowner and the board work out a compromise.

Compromise. This is a good thing because it usually means that each side has given up something and gotten something back in return. For example, in one of my company’s communities, an elderly gentleman lived next door to a family in which a son owned a drum set. The elderly homeowner was angered at the hours the son played the drums. Both sides were summoned to an enforcement hearing, and they resolved the problem by agreeing that the son would play his drums only between 10 a.m. and 6 p.m.

Fines. Sometimes, despite repeated notifications, hearings, and even attempts at compromise, a violation remains outstanding. In such cases, it may become necessary to impose fines or other penalties. Proceed cautiously, carefully adhering to your CC&R-regulated enforcement procedures.

If you opt to impose a fine, make it reasonable relative to the severity of the infraction. An unreasonably harsh fine might make homeowners angry and defiant; conversely, an unreasonably soft fine might not even get their attention. In either case, the result is noncompliance.

Another avenue in lieu of–or in addition to–fines is the curtailing of privileges. Perhaps you can restrict or suspend a homeowner’s rights to use the swimming pool or other common-area facilities until a violation is addressed.

Of course, it’s not inconceivable that the fines you impose will go unpaid. At this point, consider small-claims court–or consult an attorney about the possibility of a lawsuit. Again, tread very, very carefully. Have you communicated with the homeowner every step of the way? Have you been sympathetic yet firm? Have you exhausted every possible option?

THE MOD(IFICATION) SQUAD

That takes care of general enforcement procedures, good for most rules and regulations. But architectural guidelines can be their own animal. There are some similarities to the discussion above, but because architectural review defines what people can do to their homes–and, in most communities, comes with its own review committee–there are some twists, too.

Even more than other areas, architectural enforcement hinges on good monitoring. Who is doing what to their home, and is it in keeping with your guidelines? Conduct weekly home inspections and record any violations in an inspection log, then consult the log to make sure each case was followed up. As always, be reasonable, even casual; few things are more destructive than the stereotypical clipboard-toting nitpicker.

Be proactive, too. Foster communication by sending courtesy reminders to each new homeowner two to three months in advance of installation deadline dates. The reminder should explain the process for making exterior modifications and include relevant architectural forms to make it as easy as possible.

Should a homeowner begin a modification prior to obtaining the necessary approvals, send a “cease” notification immediately, requesting that the homeowner stop all work and submit plans to the architectural review committee. If work doesn’t stop, summon the homeowner to a hearing and follow the process described above (and in your CC&Rs).

TALK, TALK, TALK

Regardless of the rule, the board must enforce it fairly, objectively, and with uniformity. Don’t subjectively select which rules you’ll bring to bear, or which homeowners will receive penalties. Creating an enforcement process that involves board members, committee members, and managers will help ensure objectivity.

But the most important people to involve in your enforcement efforts are homeowners. Understanding and responding to your residents will do wonders for compliance. Always remember that homeowners may be pressed with circumstances that may prevent them from complying with minor rules. For instance, one homeowner in a community managed by our firm left trash cans in the street after the scheduled pick-up date. We sent a violation letter to this first-time offender only to find out that one of the homeowner’s family members had been injured in an accident the previous day. The homeowner was very conscientious, with no previous infractions, and was frustrated by our immediate enforcement. Clearly, a kind phone call or personal communication would have been better received.

Also, not to be underestimated is educational outreach. Face-to-face chats, community forums, newsletters, bulletin boards, and Web sites can help explain to your resident’s association operations, the reasoning behind your rules and regulations, and the benefits they carry. And social events–completely unrelated to rules enforcement–can create a forum for conversation and bonding among residents, committee members, and the board.

Yes, board members and managers have a fiduciary duty to enforce the rules and, ideally, to enhance property values. But this ideal is best achieved through creative and compassionate methods. A hardline approach eventually will gain compliance, but when it comes to a productive, long-term outcome–a harmonious, highly valued neighborhood–the most reasonable, respectful, and courteous methods should always be your first choice.

https://www.caionline.org/LearningCenter/ResLib/Pages/3205.aspx
By Michelle Renee Pate, CCAM

Common Ground

July/August 2001

Enforcing the Rules in Your HOA

If you live in a homeowner’s association and the Board doesn’t resolve a known violation of your community or appears to be avoiding and neglecting the problem, you must become familiar with the duties and powers given to the HOA within the community’s governing documents. These documents are called the covenants, conditions, and restrictions or what are commonly known as CCRs. CCRs contain the language and description of the rules that all homeowners who had purchased property within your association must follow.

Typically, the governing documents give the HOA and the acting Board, the duty to enforce the restrictions, rules, covenants, and regulations in the community. The actual power that your HOA has to enforce the rules; however, is harder to predict. Because your CCRs are a legal set of conditions for all homeowners to follow, they are binding and upheld in a court of law. HOAs are given the power to impose fines on homeowners for rule violations and can also levy assessments to pay for unforeseen maintenance or community property that has been damaged. Since everyone shares in the use of their common amenities, HOAs must decide how to collectively manage and maintain them. The HOA might also have the power to impose property liens on members who don’t abide by the rules.

Furthermore, some community’s governing documents make the enforcement of certain rules discretionary. Discretionary is the power or right of the HOA Board to make official decisions using their reason and judgment to choose from among acceptable alternatives. The HOA might have a lot of leeway about whether, and how, it enforces a discretionary rule.

In either case, it’s difficult for a homeowner to make the HOA enforce a rule or regulation. If it’s up to the discretion of your Board to determine what colors are too bright, for example, and if the Board decides that this rule applies only to purple and yellow, you will be hard-pressed to make the Board agree that the fire engine red color you hate is against the regulation.

In a situation where the HOA has no enforcement powers, or the rule the homeowner desires the HOA to enforce is discretionary, one option for a homeowner might be to try to amend the governing documents.

Another option would be to hire an HOA manager that regularly deals with CCRs and has a deep understanding of how to govern an HOA. A professional HOA manager may be able to foresee issues before the enforcement escalates or to advise the HOA on how to amend their CCRs to protect the association from further risks or liability.

According to Mike Madson, who has run MGM Association Management for the past 20 years, “I see many Board members who attempt to run for the Board, only to enforce a rule that has personally involved them. Once they get their way, they fail to understand that there are certain procedures to governing an entire membership. Many Board members lack the necessary skills to negotiate conflict or cannot handle addressing varying viewpoints.”

For more information on how to enforce your HOA rules or to get a better understanding of how to govern your HOA better, contact MGM at (208) 846-9189 or visit www.gomgm.com.