Rules and regulations govern all aspects of community association living including, for example, when monthly common area charges are due, what types of pets (if any) you are allowed to keep, the time of day you can move
in or out of your unit, whether and how you are permitted to rent your unit, landscaping requirements/restrictions . . . and the list goes on. Rules and regulations are an integral part of community association living, and as everyone knows, rules and regulations are useful only if enforced. Unfortunately, while following the rules is easy for the vast majority of unit owners, the small number that find it difficult can wreak havoc on association boards.
Enforcement of the rules and regulations is one of the largest problems facing condominium boards. So how can a board effectively enforce compliance with the rules and regulations? Consider the following steps for your association:
Send
A Courtesy Reminder Letter:
Most unit owners do not want to be a thorn in the side of the condominium board. Sending a courtesy reminder letter to the unit owner of their responsibilities under the governing documents and the shared responsibility of all unit owners to comply with the rules and regulations can be an effective tool to address a violation. The letter should include notice of the violation and a specific time period within which to correct the violation. It is often helpful to point out why the particular rule is important to the association, what would happen if the rule did not exist, and that the goal of the association is to work cooperatively together to ensure that all unit owners enjoy the benefits of the covenants and restrictions. Very often this gentle reminder will result in the unit owner immediately addressing the violation.
Send
A Formal Violation Letter:
In the event the unit owner does not address the violation in a timely manner after receiving the courtesy reminder letter, the next step would be to send a formal notice of the violation threatening fines or other enforcement restrictions against the unit owner in accordance with the governing documents of the condominium. The letter should include specific reference to the applicable rule or regulation at issue and the board’s authority to assess fines or enforcement restrictions in response to the unit owner’s non-compliance. As with the reminder letter, the formal violation letter should articulate a specific time period for the unit owner to correct the violation.
Impose
A Fine or Enforcement Restriction:
If the courtesy reminder and formal violation letters do not lead the unit owner to correct the violation, it is probably time for the board to impose fines or other enforcement restrictions.
The ability to levy fines against a unit owner is arguably the most effective tool association boards can use to enforce the condominium’s rules and regulations. Fining restrains problematic conduct; limits repeat offenders and protects unit owners from bad neighbor behavior. Fines are typically addressed at the outset of the development of the association through provisions in the condominium governing documents. Generally, the governing documents articulate the board’s authority to fine and either set forth a specific fine amount or, alternatively, provide that the board may from time to time set reasonable fines.
The effectiveness of fining is largely dependent on the authority conferred upon the board in the governing documents including but not limited to whether the board is empowered to adjust the fine amount over time. When the governing documents set specific fine amounts and do not empower the board to reset the amount over time, the set amounts will become outdated. For example, if the fining authority of the board is so low that it is easier (and possibly cheaper) for the unit owner to to pay the fine than comply with the regulation, than fining is unlikely to be an effective tool to address violations. On the other hand, if the fine is disproportionate to the violation and/or the unpaid penalty continues to pile up, the unit owner may disengage and refuse to pay the fine.
Association boards should also be careful not to allow fines to morph into an amount that is clearly excessive considering the violation and should always consider whether the specific circumstances of the unit owner warrant leniency. Similarly, although fines can be very effective, boards should avoid over-imposing fines and earning a reputation of being heavy-handed. It is always preferable to resolve violations before the imposition of fines becomes necessary.
An alternative and equally effective tool to fining is the imposition of enforcement restrictions to address violations of the condominium rules and regulations. As with fining, the best practice is to address enforcement restrictions at the outset of the development through provisions in the condominium governing documents. The governing documents should empower the board to impose reasonable restrictions in lieu of fines that restrict access to site amenities including, for example, the pool, clubhouse, gym, or common roof deck until the unit owner corrects the violation.
Engage
In Self-Help:
Very often governing documents allow the board to correct a violation, at the unit owner’s cost, if the unit owner fails to correct a violation in a timely manner. If the governing documents of the condominium allow the board to engage in self-help, it is important that the board specifically follow the procedures outlined in the governing documents prior to rectifying the violation.
Initiate
Litigation:
There will be times when fining and/or enforcement restrictions do not resolve an issue. When that occurs, and if no alternative exists to correct a violation, the board has the right to file an equitable claim for relief requesting an order for an injunction to enjoin the unit owner from continuing to violate the rules and regulations. Before initiating litigation, the board should work closely with an experienced condominium lawyer to achieve the best possible result. If the board is successful in obtaining an order from court, the unit owner will be responsible for costs and attorneys’ fees incurred by the board in pursuing relief.
Evaluate Your Process:
There is no one-size-fits-all approach to successfully enforcing the rules and regulations of a condominium. Association boards should periodically review whether improvements can be made to their system of enforcement and evaluate the following:
· Whether the enforcement policy and/or process is clearly defined in the condominium documents and understood by unit owners;
· Whether there are insurmountable bureaucratic hurdles unit owners must overcome to resolve a violation;
· Whether the board and/or property manager is ready, willing and able to effectively communicate with a unit owner to resolve a violation;
· Whether the policy and/or process is fair; and
· Whether the policy and/or process has been effective in achieving compliance with the condominium rules and regulations.
If the board determines that improvements should be made to its enforcement policy and/or process, the board should consider engaging an experienced condominium lawyer to offer advice and guidance on the implementation of improvements including whether it will require an amendment to the condominium governing documents.
A
principal in the Boston and Quincy-based law firm of Moriarty Troyer &
Malloy LLC and a member of REBA’s Condominium law and Practice Section, Heather
is an experienced trial attorney with seventeen years of litigation and trial
experience in state and federal courts.
Heather also represents clients in a variety of real estate matters
including property rights issues, zoning appeals, and neighbor disputes. She
can be contacted by email at hgamache@lawmtm.com
